Maternity rights are the family friendly rights protecting women employees in connection with their pregnancy. These rights have been set out in the Employment Rights Act 1996( ERA 1996). The fundamentals of Maternity rights are intended to extent the period during which women can stay at home with their young child by giving them both the right to return to their former employment for a certain period after the birth and the right to income from the state for part of that period. Based on the scenario, Nadia needs to know the maternity rights which may be entitled to her. Firstly a woman has a right to take time off for ante-natal care, governed by s. 55 of ERA 1996 which was originally introduced by the Employment Act 1980. This provides that a pregnant employee has the right not to be unreasonably refused time off work during working hours to receive ante-natal care and to be paid for such time off period. Accordingly, Nadia is entitled for this right and may complaint to the employment tribunal regarding any refusal by the firm. If the tribunal upheld her complaint she may be entitled for an award of compensation equivalent to the amount of pay she would have received had the time off been allowed. Secondly, Nadia has the right to maternity leave. The current law provides entitlement up to a total of 52 weeks for maternity leave. However, Nadia’s firm provided one month of unpaid maternity leave contravenes the law. In fact, her employer must provide a contract of employment for more advantageous provision not less as such. By the virtue of the Employment Act 2002as implemented by the Maternity and Parental Leave Amendment Regulation 2002 provides all women employees are eligible for ordinary maternity leave. Therefore, Nadia has the right for ordinary maternity leave of 26 weeks which includes compulsory maternity leave which is 2 weeks, taken immediately following the birth and also for an additional maternity leave (AML), a further of 26 weeks. Besides, a woman is also entitled to return to her job after AML or if it is not reasonably practicable, to another job which is suitable and appropriate for her circumstances. The terms and conditions must not be less favourable than if she had not been absent, with seniority rights preserved as they were at the start of her AML period. Similarly, in Blundell v St Andrew’s Catholic Primary School, held that when considering the old and new jobs it is necessary to consider nature, capacity and place. Furthermore, Nadia has also the right to maternity pay. All working women are entitled to Statutory Maternity Pay (SMP) or maternity allowance. This will be given on condition that they have been continuously employed for at least 26 weeks ending with the 15th week before the expected date of childbirth. Moreover, they must have normal weekly earnings for eight weeks ending with the qualifying week of not less than the lower earnings limit and in force for payment of national insurance contributions and they must be absent from work due to pregnancy or childbirth. Therefore, Nadia may be entitled for SMP pay for up to 39 weeks, the first six weeks are paid at 90% of the her average weekly earnings taken at the relevant period and the remaining weeks are either at the SMP prescribed rate or at 90% of her weekly wage if she earns less than the prescribed rate. In addition, s. 73 of the new Equality Act 2010, states that a woman’s contract should be read as including a maternity equality clause. The clause ensures that any pay or bonuses are paid at the time she would have received them, had she not been on maternity leave and ensure that if there was a pay rise whilst she was on maternity leave, her pay will reflect it on her return to work. For example, in Alabaster v Woolwich plc v Secretary of State for Social Security, was held that a woman who received a pay increase before starting her maternity leave was entitled to have it taken account of when her employer calculated her maternity pay. Lastly, right not to suffer detriment or dismissal on grounds of pregnancy and childbirth. The Employment Protection Act 1975 made it automatically unfair to dismiss a woman for pregnancy with some exceptions. The act and the failure to act by the manager for not providing the necessary protection for pregnant employees, clearly shows that Nadia may suffers detriment. This violates the right under s. 47 of ERA 1996. The manager believes pregnancies are inconvenience to the firm discriminates the woman employees is deemed to be automatically unfair. By the virtue of Equal Treatment Amendment Directive, it was stated that any less favourable treatment of woman related to pregnancy or maternity leave should be treated as sex discrimination and has been added to the Sex Discrimination Act 2005. As established in the case called Dekker v Stichting, Nadia, may likely to claim against sex discrimination for which there is no limit of compensation. Any selection for redundancy will also be automatically unfair if the employee can show that the reason or principal reason was connected with her pregnancy. According to the manager Akthars, running on low profits are the reason for potential redundancies which may likely place Nadia in the risk of losing her job. Based on the facts above, Nadia is under an obligation to inform her manager about her pregnancy and may claim for her maternity rights by making a complaint to the Employment tribunal regarding the firm and her manager as they are acting less favourable and unfairly towards pregnancies.
PART B : Advise for Stewart
The family friendly rights have been described by the Government as a way to make a difference to families in terms of providing a work –life balance. The Employment Relation Act 1999 gives employees the right to take time off for ” urgent family reasons”. In relation to the question, Stewart may be entitled for the time off right, regardless of his hours of work and whether he works full time or part time on temporary or permanent contracts because the right is entitled to all employees. Under s. 57A and s. 57B of ERA 1996, gives employees a right to time off to take action that is necessary in the following circumstances to; Provide assistance when a dependant is ill, injured, assaulted or given birthArrange care for an injured dependentDeal with an unexpected disruption in arrangement for the care of a dependant or the terminations of those arrangements. To deal with an incident involving a child of the employee occurring unexpectedly at an educational establishment which the child attends. Therefore, Stewart can achieve the necessary time off as the above element and the notion of dependant has been established under s. 57A(3) of ERA 1996, between him and his son. This section defines a dependent as a spouse, civil partner, child, parent or person living in the same household as the employee. Joel was dependant on Stewart as he was a single parent and he has a duty towards his son. Crucially, the time off for dependents cannot be taken for any other reason and should not be abused. Under s. 57A(1) of ERA 1996, provides that it must be a reasonable amount of time off. The time off that Stewart need was to accompany Joel’s physiotherapy session once a week in the afternoon may seem reasonable unlike in the case Qua v John Ford Morrison, it was held that the right did not extend to looking after a sick child during a period of illness. To successfully achieve the time off Stewart should notify his firm as soon as reasonably practical of the reason as to why and how long it is likely to last as S. 57A(2) of the ERA 1996 states. Unlike sometimes employees only inform the employers of their time off after they have returned to work in which the employer is faced with an employee who is absent without explanation that could lead to reviewing of disciplinary procedures for dealing with unauthorized absences as illustrated in the case of Hanley v Pease. If Stewart’s permission to take time off is unreasonably refused, he has a right to complaint to the employment tribunal within the period of three months. Consequently, the tribunal will make a declaration and can award such compensation as it considers to be just and equitable having regard to the seriousness of the employer’s fault and any loss to the employee by the virtue of s. 57B of ERA 1996. In addition, employees may bring an action under S. 47C of ERA 1996 if they are subjected to a detriment for exercising their time off rights and also for any insistence to make up for the time later. Based on the facts above, Stewart can achieve his right to time off for his dependant, his son, Joel.