Employment Rights: Can you claim ESA when pregnant?

If you become pregnant, there are numerous employment rights and potential benefits that are important to be aware of. Most importantly, rights to maternity leave and maternity pay.

However, to make full use of these benefits, it is vital to be aware of precisely what these employment rights are for anyone who becomes pregnant.

Employment rights when pregnant

All employment rights for those that have become pregnant can be split into a few key points. These, in turn, can be classified as either the responsibility of the employee or the employer.

While the employer is compelled by law to offer certain maternity rights, it is also essential that the pregnant employee research what they are entitled to, as they will often only receive a benefit if they apply for it.


Maternity Leave and Maternity Pay

1. Maternity Leave

Every employee is entitled to maternity leave. This is guaranteed in law. You will be given up to 52 weeks of maternity leave.

It is important to note that the employee must do all of the following things at least 15 weeks before the week in which the baby is due. This includes:

  • Telling the employer that they are pregnant
  • Informing them of the due date
  • Asking for maternity leave
  • When the employee wants the maternity leave to begin and end, these dates can be changed and adjusted later.

Once you have informed your employer of all of this, then they should confirm the date of the end of your maternity leave. This is to ensure that you are both on the same page with the same date.

Remember: It is crucial to get everything in writing to avoid confusions and miscommunications in the future.

2. Maternity Pay

Typically, three types of maternity pay should be available to you.

  1. Statutory Sick Pay – This is the most common kind of maternity pay, and the type you will most likely be offered by your employer. Legally, this is the minimum amount you are entitled to. On average, you will receive a minimum of £120 per week, before tax.
  2.  Contractual Maternity Pay – Some companies occasionally offer this in the place of statutory sick pay.
  3. Maternity Allowance – If you are unable to receive maternity pay from your employer, then the government will provide this allowance.

Health and Safety Responsibilities of the Employer

An employer has a responsibility to ensure that the workplace is a safe environment for everyone working there. This is especially the case when an employee becomes pregnant.

After the pregnant employee informs their employer of the pregnancy, then employers are required by law to conduct a risk assessment of the workplace. This is to make sure that there is no risk to the employee or the baby.

They will look for things such as:

  • Risk of exposure to any toxic substances
  • Instances where heavy lifting is required
  • Areas of the job that require sitting or standing for any long periods
  • Lengthy working hours

During this process, the employer should work with the employee, and take into account any of the needs of the employee may have.

If an employer does not ensure a safe environment

During this risk assessment process, and especially after, the employer must address any health and safety issues they may find.

This usually takes the form of one of three steps that the employer can take to ensure the safety of the pregnant employee. It is important to note that these apply only if they are, in fact, an employee. This means that if the person is merely a casual worker or a worker on a zero-hours contract, then only the first of these three steps will apply.

Step 1: Change the working condition

If possible, your employer should alter the work environment to mitigate the issue and make it safe to work in. For example, changing the starting hour of the employee to avoid rush hour or supplying a new chair so the employee can work comfortably and without back pain.

Step 2: Delegate work differently

If it is too difficult or impossible for an employer to change the working conditions, then they should delegate the work to another employee. The pregnant employee should be moved and given work that they can carry out safely elsewhere.

Step 3: Allow the employee to remain home

Pregnant employees have the right to stay at home until the risk at work has been dealt with. Employers cannot cut pay or threaten any coming promotion because of this.

Can you claim ESA when pregnant?

What is ESA?

ESA (employment and support allowance) is a benefit available to anyone unable to work due to a disability or illness.

Since the introduction of Universal Credit, it is now referred to as “new-style ESA”. This is what most applicants will receive if they apply for ESA. It is dependant on the applicant making National Insurance contributions for at least two tax years.

Those who have been receiving SDP (severe disability premium) cannot claim for new-style ESA. These applicants may apply for the old types of ESA. These options will be offered and explained to the applicant if the criteria are met.

Can you claim while pregnant?

So is it possible to claim employment and support allowance while pregnant?

This is dependant on some factors specific to each case.

Specifically, being pregnant is not always classed as having a “limited capacity for work”. This is the usual criteria for claiming ESA. A claimant’s entitlement to ESA all depends upon what stage of pregnancy they are in.

  • Six weeks before the due date, a claimant is classed as having limited capability for work. This makes it possible to claim for ESA – assuming that they do not already receive any maternity pay.
  • If there is a health risk to either the claimant or the baby, then they may be eligible for ESA earlier than the six weeks before the due date.

It is important to remember that claiming ESA should be a last resort, as it is the least likely benefit someone in this position is expected to receive. Statutory maternity pay or maternity allowance should always be the first option.

Want to know more?

Want to find out more about your employment rights when pregnant? Still unsure as to exactly what benefits you are entitled to? Contact our employment solicitors now! Our experts are waiting to offer tailored advice specific to your situation.


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