Can a pregnant employee be required to take parental leave within six weeks before the birth?
A pregnant employee wanting to work during the six weeks before birth may be asked by the employer to provide a medical certificate containing the following:
- a statement of whether the employee is fit for work
- if the employee is fit for work, a statement of whether it is inadvisable for the employee to continue in her present position because of:
- illness, or risks, arising out of the employee’s pregnancy, or
- hazards connected with the position.
The employer may require the employee to take a period of unpaid parental leave as soon as practicable if one of the following applies:
- the employee doesn’t provide the certificate within seven days after the request
- the employee provides a certificate within seven days stating that they are not fit for work or
- the employee provides a certificate stating they are fit for work, but that it is inadvisable to continue in the present position due to illness, risk to the pregnancy, or job-related hazards and the employee is not entitled to transfer to a safe job or to ‘no safe job leave’.
This form of directed leave runs until the end of the pregnancy or until the planned leave was due to start, and is deducted from the employee’s unpaid parental leave entitlement. It is exempt from the rules about when the leave must start and that it be taken in a continuous period, as well as notice requirements.
What if it's not safe for a pregnant employee to do her usual job?
If it's not safe for a pregnant employee who's entitled to parental leave and has already complied with the notice and evidence requirements to continue in her usual job, she can be transferred to an appropriate 'safe' job. If transferred, she's entitled to the same rate of pay and ordinary hours as her present job, or different hours by agreement.
The employee must provide her employer with reasonable evidence that she can work, but can't perform her usual job. The employer may require the evidence to be a medical certificate.
If the employer can’t transfer the employee to a safe job, the employee may take (or be required by her employer to take) paid ‘no safe job’ leave for the time stated in the medical certificate or until the pregnancy ends (either by giving birth or otherwise). The employee must be paid their base rate of pay for the ordinary hours they would have worked during this period.
The amount of this paid leave will not reduce the length of the unpaid maternity leave the employee's entitled to.