Maternity leave and pay

The law provides a pregnant employee with a number of rights:

• Time off for antenatal care
• Maternity leave
• Maternity pay

The law also protects a pregnant employee from:

• Dismissal
• Detrimental treatment
• Exposure to any risks to her baby which are present in her working environment.

Any infringement of a pregnant employee’s rights could result in a claim to an employment tribunal. For this reason, whenever you are notified by an employee that she is pregnant and when there is any question about maternity rights, you should call the ABDO HR Service Advice Line for advice on how to proceed.

Antenatal care

Once an employee has made an appointment to receive antenatal care on the advice of a registered medical practitioner, registered midwife or registered health worker, she has the right to take time off with pay to keep the appointment. Employers should, however, ask for some evidence i.e. an appointment card, showing that a doctor or midwife has recommended the appointment.

Maternity leave

All maternity leave should be recorded on the employee’s Absence Record.

Notification

A pregnant employee must notify her employer of her intention to take maternity leave by the 15th week before her expected week of confinement (EWC), unless this is not reasonably practicable. She is required to tell her employer:

• That she is pregnant.
• Her EWC.
• The date when she intends to begin her maternity leave.

It is best to get this notification from the employee in writing. Ask the employee to obtain a form MAT B1 from her doctor or midwife. This will confirm the pregnancy and the date when the baby is due.

A woman is able to change her mind about when she wishes to begin her maternity leave, provided she notifies her employer at least 28 days in advance, unless this is not reasonably practicable.

Employers are required to respond to a woman’s notification of maternity leave within 28 days. The employer’s response must be in writing and must set out the date on which the employee is expected to return to work if she takes her full maternity leave entitlement. For a suitable letter, please see Letter for employers to acknowledge notification of maternity leave.

Ordinary maternity leave

All women are entitled to a minimum of 26 weeks’ maternity leave regardless of length of service. The earliest date a woman can begin her maternity leave is the beginning of the 11th week before the baby is due.

Leave may commence in three ways:

• By notification.
• On the first day after the beginning of the fourth week before the EWC, if the woman is absent from work due to a pregnancy related illness.
• With the birth of the child.

Additional maternity leave

Women with 26 weeks’ continuous service by the beginning of the 14th week before the EWC have the right to take up to 26 weeks additional maternity leave, starting immediately after ordinary maternity leave. This means that a woman who qualifies for additional maternity leave can take up to a year off work.

Compulsory leave

New mothers are prohibited from working or returning to work for two weeks after childbirth.

Return to work

An employee on maternity leave (ordinary or additional) has no need to notify you if she intends to return to work on the due day.

If the employee wishes to return early from ordinary or additional maternity leave, she must give 28 days’ notice of her intention to return.

If she does not give 28 days notice, you are entitled to postpone the date of her return so that you are given 28 days’ notice. However, this cannot extend beyond the date when her maternity leave is due to end.

In all other circumstances, the employer has no right to postpone the employee’s return from maternity leave. Similarly, the employee cannot postpone her return on the grounds of sickness. If the employee is too ill to return to work on the due date, you should manage the absence in the same way as any other sick leave.

The employee is entitled to return to the same job. Give careful consideration to any request to return to work on a part-time basis. (See Flexible working section). If an employee fails to return, you may, depending on the circumstances be able to take disciplinary action. You must not, however, deny your employee her right to return.

Rights during maternity leave

During ordinary leave all contractual terms and conditions, with the exception of remuneration, are preserved. This means that company benefits, such as a company car or membership of a private health insurance scheme should continue during ordinary maternity leave. Where the employee is a member of a pension scheme, the employer’s pension contribution should be calculated as if the employee is working normally and receiving the normal pay for doing so.  If the rules of the pension scheme require the employee to make his/her own pension contributions, the employee’s contribution should be based on the amount of Statutory Maternity Pay or contractual pay, which is being paid to the employee (if any).

During additional leave, the contract of employment continues but the employee is only entitled to the benefit of her employer’s implied obligation to her of trust and confidence, and any terms and conditions of employment relating to notice of termination by the employer, redundancy compensation and disciplinary or grievance procedures. All other contractual rights are suspended. The employee remains bound by her implied obligation of good faith to the employer and any terms and conditions of employment relating to notice of termination, disclosure of confidential information, acceptance of gifts or other benefits and her participation in any other business.

It is good practice to include those on maternity leave in all communications where possible. For example, send newsletters, memos and job vacancy lists to the employee’s home address. Invite those on maternity leave to attend employer presentations if they occur during their absence.

If you appoint someone to cover the work/job of the woman who is on maternity leave, always make the appointment on a temporary basis.

Holidays during maternity leave

During ordinary maternity leave, an employee will continue to accrue her statutory holiday entitlement of four weeks paid leave per year. She will also continue to accrue any additional holidays, over and above the statutory minimum, which she may be entitled to under her contract of employment. Statutory holiday entitlement also continues to accrue during additional maternity leave. However, employers are able to set their own policies and rules in relation to how additional, contractual holidays accrue during the additional maternity leave period. Provided that the employer’s rules/policies are expressly stated in the employee’s contract of employment.

Employees should be allowed to take their accrued statutory holidays on their return from maternity leave, even – if necessary – in a new holiday year. It is therefore important, before maternity leave begins, for the employer and employee to discuss and agree the arrangements for accrued statutory holidays to be taken. The timing of the employee’s holidays (either before or after maternity leave) is likely to depend on when in the holiday year the employee’s maternity leave falls. Where the employee has a contractual entitlement to holidays in addition to the statutory minimum, the employer’s own policy will determine the rules for taking this additional holiday. It is important, however, that the employer’s rules have been incorporated into the employee’s contract of employment. Employers are able to make a payment in lieu of any additional, contractual holidays, as long as this provision is contained in the employee’s contract.

Statutory Maternity Pay (SMP) and the maternity pay period

All pregnant women are entitled to 26 weeks SMP, paid by the employer, provided they have been continuously employed for at least 26 weeks (irrespective of the number of hours worked) ending with the 15th week before the EWC and their average weekly earnings are above the National Insurance threshold. This 15th week is known as the qualifying week (QW).

SMP should be paid at the rate of:

• 90% of average weekly pay for the first six weeks of maternity leave.
• The standard rate of SMP (which is normally increased on an annual basis) for the remaining 20 weeks of maternity leave. The standard rate of SMP is currently £106.00 per week, or 90% of the woman’s average weekly earnings if this is less than £106.00 per week.

Average weekly earnings are calculated over a set period between:

• The last pay day before the Saturday at the end of the qualifying week and
• The last pay day at least eight weeks before that date.

The employee will not be entitled to payment during her additional maternity leave period, unless her contract of employment provides that she should be paid.

You should not pay SMP for any week during which the employee works.

Employers whose class 1 National Insurance contributions for the previous year amount to £45,000 or less can recover all of the SMP they have paid to employees, plus an amount to cover administration costs. Other employers can recover 92% of the SMP they have paid. Employers who need to may be able to receive funding in advance from HM Revenue & Customs, for payments of SMP.

SMP records should be kept for three years.

If an employee does not meet the qualifying conditions for SMP, you should issue her with a form SMP1 and advise her to contact the Benefits Agency to see if she qualifies for Maternity Allowance.

Dismissal and discrimination

Dismissal by reason of the employee’s pregnancy or for a reason connected with the pregnancy is automatically unfair.

If you do dismiss an employee during pregnancy or the ordinary maternity leave period you must provide her with written reasons for dismissal.

Employers should be wary of treating a pregnant woman in any way unfavourably. Unfavourable treatment on the grounds of pregnancy, childbirth or maternity leave (ordinary or additional) is unlawful sex discrimination and grounds for an employment tribunal claim.

Health and safety

Employers should carry out a risk assessment where new or expectant mothers may be exposed to working conditions which may harm the baby. The same requirement applies where women of childbearing age are employed, who may be pregnant but not yet aware of their condition.