Maternity rights

Our Christmas bonus scheme pays 8% of salary to every employee. Recently it has come to light that women on maternity leave only get it pro-rata for the time they have actually worked. The contract says nothing about this exclusion. Is it lawful?

Women who are on ordinary maternity leave (OML - the first 26 weeks of maternity leave) have the right to benefit from all contractual terms other than their actual rate of pay.

The Discrimination law handbook argues that terms like Christmas bonuses are not pay and are therefore not excluded from rights during OML. This would mean that your members' 26 weeks OML should be taken into account in assessing her bonus entitlement.

The European Court of Justice has also ruled that employees on maternity leave cannot be entirely excluded from rights to bonuses. Rights that would apply beyond the period of OML are entirely dependent on what the contract says or how it has been applied in practice if nothing is laid down.

* More information: Discrimination law handbook, ed. Aileen McColgan (Legal Action Group); Lewen v Denda [2000] IRLR 67