Salon guidelines for maternity leave
The regulations are constantly changing and there have been many employment tribunal cases. An understanding of the maternity regulations and employee rights is essential.
David Wright, who advises Habia and a variety of salons on legal and personnel matters, gives his advice on the issues most salon staff want to know about maternity leave.
How long does an employee have to have been employed before being entitled to maternity leave?
From day one an employee is entitled to maternity leave, however they have to be employed for 26 weeks, 15 weeks before the expected week of confinement.
The maternity leave entitlement is up to 52 weeks. This comprises of:
- 26 weeks' ordinary maternity leave
- 26 weeks' additional maternity leave.
In the first six weeks of their ordinary maternity leave, the employee receives 90% of their normal earnings.
If an applicant is pregnant when they come to the interview, they are under no obligation to inform the employer.
How much statutory maternity pay (SMP) does an employee receive?
Subject to their qualifying (see above) and earning an average of £90 per week an employee receives £117.18 SMP. If an employee doesn't earn above the earnings ceiling they may well be entitled to Maternity Allowance from the Department of Social Services (DSS).
Most salons will be able to recover 100% of the SMP paid and a 4.5% payment on top for making the payment. In short, apart from the first six weeks, SMP is at no cost to the employer.
Can you clarify what exactly an employee receives while on maternity leave?
It is a little complicated but here goes.
- 90% of their normal average earnings for the first six weeks
- For the next 33 weeks they receive statutory maternity leave (this totals 39 weeks ie 26 weeks' ordinary maternity leave and 13 weeks' additional maternity leave)
- This leaves 13 weeks' additional maternity leave, which is unpaid.
Can an employee work while on maternity leave?
Prior to 2007, when an employee returned to work, even for a day, their maternity leave ended. However, since April 2007, 10 'keep in touch days' (KIT days) have existed.
An employee can now return and receive their full rate of pay for up to 10 days. Neither the employer nor employee can demand the right to the KIT days. However, the days are potentially invaluable and of mutual benefit.
A day could be used for training purposes but equally could be spread over the year to allow the employee the opportunity to retain some key clients. The prospect of a full column with good commission opportunities might be very attractive indeed.
What happens to an employee's annual leave?
Employees continue to receive their benefits and should, for example, receive the benefits of any pay awards.
In their ordinary leave, they accrue annual leave normally. In their additional maternity leave, employees only accrue holiday up to the minimum defined under the Working Time Regulations, ie currently 24 days.
While it is currently being challenged, the current view is that employees can't carry over leave between years unless the employer specifically agrees.
I have just been advised that an employee is pregnant; are there any special arrangements I should make?
There are a number of obligations, here are just a couple:
- You should undertake a full risk assessment in consultation with the employee and this should be repeated throughout the pregnancy
- Ensure the employee is granted paid leave to attend all antenatal appointments.
Do employees have a right to return to work on a part-time basis?
No, employees have a right to return to their post or an equivalent post. Employees have a legal right to request part-time or flexible working and there is a duty on employers to fully consider such a request.
If you are unable to agree the request for a genuine business reason then you must meet the employee, explain the business reason and provide a written explanation.
Employers can be taken to an employment tribunal, and most frequently this occurs when the salon just flatly refuses the request because they simply 'aren't happy with part-time working'.
Sometimes employees do need to revise their requests to make the hours more realistic to meet the salon's demands.
I often recommend to salon owners that the best way to assess how reasonable a request is, is to advertise the hours the employee wants to drop. If they can't attract a suitable applicant then that is a reasonable business reason to decline the request.
My manager has asked if, after her maternity leave, she can return to work on a part-time basis and work Monday to Thursday. I need my manager to be full-time, what can I do?
I will answer this in two parts:
- You have to be reasonable regarding the issue of full-time working. There are chief executives running large companies who work part-time; and there are benefits to having two part-time managers in terms of cover. More seriously though, this reason alone would be rejected by a tribunal if your case went that far.
- You have to fully consider her request, meet her and give her a written explanation. My initial reaction is that, on a practical level, your manager is being a little short-sighted in looking to drop the two busiest days in the salon.
As suggested above you could advertise for a manager to work every Friday and Saturday. This might be ideal for someone, but it doesn't seem likely. If you can't appoint a second person, you simply decline the request.
However, I might be tempted in the first instance to ask her to reconsider her request, as it would initially appear that you will be unable to accommodate it.
