Outlook video: Maternity rights of employees on fixed-term contracts

XpertHR's head of content Jo Stubbs and senior employment law editor Clio Springer discuss maternity rights for employees on fixed-term contracts. 

Watch the video

This video requires the Adobe Flash Player plug-in. 

Download the audio track for this video (MP3 format, 7.3MB). 

More resources on this topic from XpertHR

The questions in full:

First of all, if an employer is recruiting for a fixed-term contract, can it reject someone who is already pregnant on the basis that she won’t be able to work the full period of the contract because she’ll be leaving work to have the baby?

No. Not offering the job, or withdrawing the offer, on the grounds that the applicant is pregnant would be unlawful pregnancy and maternity discrimination under the Equality Act 2010. In addition, European case law has established that failing to recruit a woman because of her pregnancy, even if the contract is only for a fixed term, and she won’t be able to work the full period, will be unlawful sex discrimination and cannot be justified. 

So, however inconvenient they might find this, employers need to remember that the law protects pregnant women from discrimination, and this applies just as much to pregnant women applying for fixed-term vacancies as it does to other situations?

That’s right. And of course employers also need to remember that there’s no requirement for a pregnant job candidate – whether for a permanent or for a fixed-term position – to inform the employer of her pregnancy. In addition, employers shouldn’t ask any questions during recruitment to elicit information about candidates’ current or future plans to have a baby. 

So, assuming an employer has a pregnant employee who’s working on a fixed-term contract, is she going to be entitled to statutory maternity leave?

Yes. There’s no minimum length of service required for statutory maternity leave. Pregnant employees on fixed-term contracts are entitled to 26 weeks’ ordinary maternity leave followed immediately by 26 weeks’ additional maternity leave, although the maternity leave will come to an end if the contract ends during this period and is not renewed. But, for example, someone who’s working on a two-year fixed-term contract and goes off on maternity leave after nine months is going to be entitled to take her full 52 weeks’ maternity leave and return to work afterwards for the remainder of the contract. 

And of course during that time she’ll be accruing paid annual leave and be entitled to other benefits such as a company car. What about statutory maternity pay - are employees on fixed-term contracts always going to be entitled to that?

Because of the nature of fixed-term contracts, not every pregnant employee on one is going to be entitled to statutory maternity pay. That’s because, to qualify, as well as having average earnings of a certain level, an employee must have 26 weeks’ continuous service ending with the qualifying week, which is the 15th week before the expected week of childbirth. 

But if we assume an employee has this 26 weeks’ service does it matter if the fixed-term contract comes to an end shortly after she’s reached that point?

No, it could come to an end shortly afterwards and the employee would remain entitled to her 39 weeks’ statutory maternity pay in full. The rules are that the employee’s continuous service must extend into the qualifying week, which, as we just mentioned, is the 15th week before the expected week of childbirth. As long as the employee has worked just one day into the qualifying week, which starts on a Sunday and ends on a Saturday, she will be entitled to statutory maternity pay, even if the fixed-term contract comes to an end during the qualifying week. 

Basically, once she’s achieved 26 weeks’ continuous service into the qualifying week she’s entitled to be paid her statutory maternity pay in full regardless of when the fixed-term contract ends. 

So whether or not an employee has this 26 weeks’ service at the qualifying week is all important in determining if she’s entitled to statutory maternity pay?

That’s correct. However it can be quite a tricky calculation for employees with relatively short service, which will be the case with many employees on fixed-term contracts. This is because the employee might have worked only the last day of the first week of the period, ie the Saturday, and only the first day of the qualifying week, ie the Sunday. This looks like just over 24 weeks of continuous service, but in fact meets the criteria. Luckily, there’s a calculator on XpertHR to work out the dates between which the employee must have been employed to qualify for statutory maternity pay quickly and simply. All the employer needs to do is enter the baby’s due date. 

Back to top

XpertHR calculators

Maternity, paternity and redundancy calculators Calculators on XpertHR allow employers to calculate employment law entitlements, covering statutory maternity leave and pay, statutory additional paternity leave and pay, and statutory and enhanced redundancy pay. 

Back to top

XpertHR "how to" guidance

How to deal with employees on fixed-term contracts who are pregnant or on maternity leave Employers need to be aware that pregnant employees on fixed-term contracts are likely to have most, if not all, of the employment rights that employees on permanent contracts have. 

Back to top

XpertHR FAQs

Maternity rights questions answered on XpertHR include:

• Can an employee who has not been employed by her employer for 26 weeks by the qualifying week claim any financial assistance throughout her maternity leave?
• Where a fixed-term employee's contract is due to terminate while she is on maternity leave, does the employer have any obligation to re-employ her at the end of her maternity leave?
• Where an employee does not qualify for statutory maternity pay can her employer stop providing her contractual benefits during maternity leave?

Back to top