If you have a pregnant employee you may find yourself discussing the possibility of reduced hours for her, particularly in later pregnancy. This is not uncommon but there are some things you need to bear in mind in terms of her rights and the impact on her pay.
What is the reason?
The reason for the potential reduction in hours has an impact on how you should handle it and on what your employee’s rights are.
Health and safety
If as part of the risk assessments you have been doing (have you been doing these, right?) you identify a health and safety risk to your employee because of an aspect of her job, you need to make adjustments to the role. In some circumstances this may necessitate a reduction in hours, perhaps because there is not enough work available for the employee to do which doesn’t have a health and safety implication.
Your employee cannot be penalised for the fact that her normal role cannot be made safe for her, so if you need to reduce her hours to ensure her safety, or even suspend her completely on health and safety grounds, she must continue to be paid as normal, either at her contractual rate, or if she doesn’t have guaranteed minimum hours, at her normal pay rate, which you may need to calculate by averaging out her pay over a number of weeks.
The question of reducing hours may come about as a result of a recommendation from the employee’s doctor in the form of a fit note, stating that she is fit to work reduced hours or light duties only. As pregnancy progresses some women find it has a more significant impact on their health and physical capacities more than others. If a doctor recommends reduced hours on a fit note or similar, you are not obliged to agree this request, just as you are not obliged to comply with fit note recommendations under other circumstances. However if the doctor is saying the employee is only fit to work if her hours can be reduced, and the alternative is that she goes off sick altogether, clearly it is sensible to consider agreeing the request if you can.
If the request is on medical recommendation grounds due to the employee’s health, and is not a health and safety concern with the role itself, you only need to pay the employee for hours actually worked, rather than at full pay rate. However, clearly there is a potential element of cross-over here, so if you are in any doubt about whether the reduction might be considered to be a health and safety issue, take advice before you cut the pay of an employee working reduced hours during pregnancy.
Employee’s own request
You may also find you have pregnant employees who are not at the stage of needing medical help, but are getting tired more quickly or struggling physically. These women may perhaps find long hours, commuting or being on their feet difficult in later pregnancy, and would like to reduce their hours, work from home some of the time, or perhaps change their hours to avoid normal commuting times if they struggle on very busy public transport.
Again you don’t have to agree these requests, and if you do agree to reduced hours, you only need pay for hours worked, however it is sensible to work with your employee to sort out something suitable if you can accommodate it.
This is likely to reduce the risk of unplanned absences and enable your employee to safeguard her health while perhaps staying at work longer. Using annual leave to make up the difference in hours to full pay is an option to consider, particularly when you bear in mind that employees on maternity leave continue to accrue holiday at their normal rate so are likely to have a lot of annual leave to use up.
Maternity pay implications
Statutory maternity pay rates are determined by the employee’s average earnings during an eight week period from week 17 – 25 of her pregnancy. This usually ensures that reductions in hours in later pregnancy for health/comfort reasons have no impact on maternity pay. Needless to say, employees who have their hours reduced (or are suspended completely) on health and safety grounds and therefore stay on full pay will not find their statutory maternity pay affected even if this change happens earlier.
If you offer any enhanced maternity pay over and above statutory, check what terms and conditions are placed on it. You may offer “full pay” for a set period, or “half pay”, but check how these amounts are calculated, particularly for those employees who have variable hours. If your maternity policy doesn’t specify a definition for those, consider revising the policy to make that clear.
You have a number of options, including using average pay over the qualifying period used for SMP, or using contractual salary at a set point, either before pregnancy, during pregnancy or at the day before maternity leave begins. Clearly, if there is no definition, or if the salary the day before the woman goes on leave is used, then a reduction in hours towards the end of her pregnancy may have an impact if her salary is reduced at that point.
When discussing the prospect of reduced hours with your employee, make sure any impact on her maternity pay is discussed, and made clear in writing, even if the policy itself wasn’t clear. This enables her to make an informed decision about whether to reduce her hours at all, or to change the timing or the reduction.
If you’d like advice on managing pregnancy in your business contact us on 0800 180 4998 or email info@face2faceHR.com.