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I am currently on a fixed-term contract ending December 31st 2008, with a two-month notice period if they or I want to cancel before. Where do I stand with maternity rights? I am due 02/03/09 so 2 months after my fixed term contract expires. Will I just claim Maternity Allowance for the Benefits Agency?
Posted Friday, 1st August 2008
Answer by Jane Barclay
Generally speaking, a temporary or fixed term contract has no special status in law, and if you are an employee (paid directly by the company you perform services for rather than paid by an Agency), you will have all the rights of a permanent employee. In fact, it is unlawful to treat fixed term workers less favourably than permanent workers.
If you are on a fixed term contract which is not renewed, it is still a dismissal under law, and has the potential to be an unfair dismissal, depending on the circumstances.
Rights during pregnancy
You have all the rights that any employee has, and cannot be treated any less favourably because you are on a fixed term or temporary contact.
If your contract ends and is not renewed, you need to look at the reasons why (and even more so if it’s ended earlier than the current end date…). If there is no longer a need for you to do the work, for example because the project has ended, you are redundant, and if you have 2 year’s continuous service with the employer you will be entitled to a redundancy payment. If the job still exists, and your contract is not renewed because of your pregnancy or maternity leave, the dismissal will be discriminatory and automatically unfair. A woman who is dismissed while pregnant must be given written reasons for her dismissal.
It is automatically unfair to dismiss a woman because she is pregnant or intends to take maternity leave even if this means that she is unable to work for the majority of the contract, whether because of maternity leave or because of health and safety reasons.
Maternity Pay
You will qualify for Statutory Maternity Pay as long as you meet the continuous service and pay requirements: You need to have been working for this same employer for 26 weeks leading up to the 15th week before the baby is due (If you started work for the company before you were pregnant, and continue until you at least reach the 15th week before the week the baby is due you will meet this requirement.)
If you meet this length of service criteria, then as your contract is due to end after the 15th week before the week the baby is due, you will be entitled to SMP.
Maternity Leave
Fixed term or temporary employees are entitled to maternity leave in the same way as permanent employees. Any reason for non-renewal connected to pregnancy or maternity leave is unfair. If your job still exists, your employer must have a fair reason for the dismissal.
If your job no longer exists, perhaps because the project you were working on has come to an end, there is a redundancy situation. Even if you have not worked for your employer for long enough to qualify for a redundancy payment, you are afforded special protection as a woman on maternity leave. You MUST be offered any suitable alternative vacancy which exists. This means that if there is a group of people, only some of whom are being made redundant, someone else must be selected instead of the woman on maternity leave.
Good luck with this! If you need further advice, I suggest ACAS as a next port of call.
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Jane Barclay
Jane Barclay is a human resources manager for a leading holiday firm. She works part-time from home with occasional visits to the office.
Anna Docherty
Anna has been working in the human resources field since 1993 in both blue chip companies and small companies. Since 2006, she has been an HR Consultant for Docherty HR.
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Helen has been practising employment law since 2002 and has extensive experience of advising employees and employers at all levels.
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