A growing campaign by charity Mummy’s Star is calling for reform to maternity leave legislation to ensure women diagnosed with cancer during or shortly after pregnancy do not lose out on maternity leave.
The issue has recently received national attention, prompting wider discussion about whether the current legal framework adequately supports women facing serious illness at one of the most significant moments of their lives.
Managing Associate and Employment Law specialist Sharney Randhawa explains what the law currently provides, where the gaps lie, and why this is an issue that deserves careful consideration.
When does Maternity Leave start, and how flexible is it?
Under current UK law, maternity leave is a statutory entitlement of up to 52 weeks for employees.
Maternity leave can begin:
- On a date chosen by the employee, provided it is not before the beginning of the 11th week before the expected week of childbirth, or
- Automatically on the day the baby is born, if maternity leave has not already started or if an employee is absent from work for pregnancy-related reasons in the four weeks before the expected week of childbirth.
Before the child is born, a mother may change the start date of her maternity leave, and she can also alter the end date, provided the required notice is given.
However, once maternity leave has started, it is treated as a single, continuous period. There is currently no legal mechanism to pause maternity leave and restart it at a later date. This presents a particular difficulty for women who are required to undergo intensive cancer treatment shortly after giving birth.
How does Maternity Leave differ from Paternity Leave?
Paternity leave operates on a much more flexible basis. Fathers or partners are entitled to up to two weeks of statutory paternity leave, which:
- does not need to be taken immediately after birth
- can be taken at any point within the first 52 weeks after the child is born
- may be taken as a single block or split into two separate weeks, subject to notice requirements
This contrast highlights how limited maternity leave flexibility currently is, particularly in exceptional circumstances.
What options are currently available to women undergoing cancer treatment?
At present, the legal framework offers no direct solution for women who wish to pause maternity leave while undergoing cancer treatment and resume it later to allow for recovery and bonding time with their baby.
Some limited alternatives may be available, including:
- Unpaid parental leave, which allows up to 18 weeks leave but is subject to restrictions (i.e. only 4 weeks can be taken in any one year) and offers no financial support as it is unpaid
- Annual leave, which continues to accrue during maternity leave and may be used afterwards to extend time at home
However, these options are short-term workarounds and do not address the fundamental issue. In practice, women undergoing treatment such as chemotherapy are forced to use maternity leave at a time when they are unwell, rather than when the leave would provide its intended benefit.
Is there a strong argument for reform?
There is definitely a case to be made as the current system fails to address or offer any solutions for women facing serious illness during maternity leave.
Maternity leave exists to support physical recovery following childbirth and to allow important time to develop the early bond between mother and child. Where a woman is undergoing cancer treatment immediately after giving birth, maternity leave is effectively being used in place of sick leave, meaning she is unable to benefit from maternity leave in the way in which it is intended to be used.
The timing of this debate is also significant. The Government is currently reviewing parental leave rules, and the Employment Rights Act includes measures to strengthen protections for pregnant women and new mothers. Reviewing this issue alongside wider reforms would be both logical and timely.
Any change would, of course, need to be carefully considered, including but not limited to:
- Cost implications for employers and the state
- Workforce planning and administrative challenges for employers
- The parameters and definition of what might qualify as a serious illness, if any change is to include other serious conditions, as well as cancer
- Alignment with other statutory rights, such as shared parental leave, paternity leave as well as adoption leave, which largely mirrors maternity leave provisions presently.
There is a clear gap in the current maternity leave framework for women facing serious illness at or around childbirth. While reform would require thoughtful policy development, the seriousness of the issue means it is one that merits proper consideration.
Campaigns such as Mummy’s Star have played an important role in bringing this issue into public focus, and discussions like these are an essential step towards ensuring maternity protections genuinely support those who need them most.
If you would like guidance on maternity leave, whether you are an employer or an employee, or if you or one of your employees is undergoing cancer treatment and is unsure about how employment law applies, our Employment Law team is here to help. Please contact Sharney Randhawa, Managing Associate, at sharney.randhawa@swinburnemaddison.co.uk or call 0191 384 2441.
If you, or someone you know, has given birth or is expecting a baby and has been diagnosed with cancer, specialist emotional and practical support is available from Mummy’s Star at https://www.mummysstar.org/
