Maternity Leave and Pay
This employment guide is a summary of what you need to do when an employee informs you that she is pregnant.
Expectant mothers have a wide range of employment rights and it is important that you aware of these rights so that you can sensitively manage such issues, plan for any period of maternity leave and avoid any potential claims of discrimination.
Notification of pregnancy
On becoming pregnant, your employee should notify you as soon as possible but no later than the end of the qualifying week (which is the 15th week before the expected week of childbirth). She should notify you in writing and should include certain minimum information.
There are special rules which permit an employee to bring forward or postpone her maternity leave start date. You should seek professional advice as to how you should deal with such requests.
Once you have received the written notification from your employee that she is pregnant you need to write to her within 28 days, confirming the date on which she is expected to return to work if she takes her full 52-week entitlement to maternity leave.
Right to a safe working environment
As soon you are notified that an employee is pregnant you should carry out a risk assessment to assess the risks to your employee and her baby.
If you identify potential health and safety risks then you are required to take reasonable steps to minimise these risks, for example by changing certain duties, reducing hours or providing longer rest breaks.
If you are unable to remove such risks then you may need to consider suspending the employee on medical grounds on full pay.
Time off for antenatal appointments
A pregnant employee is entitled to reasonable paid time off to attend antenatal/medical appointments regarding their pregnancy. She should inform you of the dates and times of future appointments after the first antenatal appointment and you can ask for evidence should you feel it necessary.
A father or the partner of a pregnant woman has the right to unpaid time off work to go to two antenatal appointments.
Maternity leave entitlement
Expectant mothers are entitled to 52 weeks maternity leave. This is split into 26 weeks ordinary leave and 26 weeks additional leave. Additional maternity leave begins on the day after ordinary maternity leave ends.
The law obliges all employees to take a minimum of two weeks maternity leave (or four weeks if the role involves factory work) immediately after the birth of her child.
Ordinary maternity leave can start at any time after the beginning of the 11th week before the employee’s expected week of childbirth (unless her child is born prematurely before that date, in which case it will start earlier).
It is important to note that during maternity leave your employee’s contract of employment continues in force and she is entitled to receive all her contractual benefits, except for salary. Any benefits in kind will continue and contractual annual leave entitlement will continue to accrue, other than where such benefits involve any form of salary sacrifice.
The length of time an employee takes on maternity can have an impact on certain rights and it is therefore essential that you take advice to ensure that you fully comply with your legal responsibilities.
When maternity leave starts will depend upon individual and personal circumstances. We can advise you how you manage an employee leaving on maternity and what options you have to request that your employee uses any accrued or unused holiday entitlement prior to leaving on maternity leave or when it ends.
Contact during maternity leave
You should meet with your employee shortly before she begins maternity leave to discuss what arrangements you are going put in place for keeping in touch with her while she is on maternity leave, should she wish to remain in contact. This contact may be to discuss the employee’s plans for return to work, any special arrangements to made or training to be given to ease her return to work, changes within the business (for example, restructuring) or simply to update her on developments at work during her absence.
In addition to any agreed day-to-day contact with an employee while she is on maternity leave, you may feel that there are occasions where it would benefit your employee to attend work, for example for training or meetings.
You can agree up to ten ‘keeping-in-touch’ or ‘KIT’ days. This is completely voluntary on the part of the employee. If she does attend a KIT day, then this a day’s work and she should be paid a day’s pay for attending. Once the keeping-in-touch days have been used up, the employee will lose a week’s SMP for any week in which she agrees to work for the company.
There are no specific regulations which govern pay for KIT days and this is a matter you should agree with your employee, although National Minimum Wage and equal pay provisions apply. In most cases employers will agree to pay an employee their normal pay if they have to attend work for a KIT day.
An expectant employee may be entitled to statutory maternity pay (SMP). SMP is payable for up to 39 weeks during maternity leave. An employee is entitled to SMP if all the following apply:
- She has been continuously employed by you for at least 26 weeks at the end of the qualifying week and she is still employed during that week.
- Her average weekly earnings in the period between the last normal pay day before the Saturday at the end of the qualifying week and the last normal pay day at least eight weeks before that date are not less than the lower earning limit for National Insurance
- She is still pregnant 11 weeks before the start of the expected week of childbirth (or has already given birth).
- She provides a MAT B1 form stating her expected week of childbirth (usually issued 20 weeks before the due date).
- She gives proper notification of her pregnancy in accordance with the rules set out above
If an employee is entitled to SMP she will receive the following:
- For the first 6 weeks, SMP is paid at the higher rate, which is equivalent to 90 per cent of the employee’s average weekly earnings calculated over a specified period. Shift allowances and overtime payments are all included for the purpose of calculating average weekly earnings.
- For the remaining 33 weeks, the standard rate of SMP is paid. This is paid at a rate set by the government for the relevant tax year, or 90 per cent of the employee’s average weekly earnings if this is lower than the government’s set weekly rate.
If an employee becomes eligible for a pay rise between the start of the original calculation period and the end of her maternity leave (whether ordinary or additional leave), the higher or standard rate of SMP should be recalculated to take account of the pay rise, regardless of whether SMP has already been paid.
Statutory maternity pay is treated as earnings and is therefore subject to PAYE and National Insurance deductions.
Employees who are not entitled to SMP may be entitled to receive maternity allowance, payable by the government.
Early birth or loss of a baby
An employee can still get Statutory Maternity Leave and SMP if the baby:
- Is born early.
- Is stillborn after the start of the 24th week of pregnancy.
- Dies after being born
Returning to work
Your employee will have informed you in writing of the date she intends to return to work if she takes her full 52-week entitlement to maternity leave. She is expected to return on this date, unless she notifies you otherwise.
If your employee is unable to attend work at the end of her maternity leave due to sickness or injury, your normal arrangements for sickness absence will apply. In any other case, late return without prior authorisation will be treated as unauthorised absence.
If your employee wishes to return to work earlier than her expected return date, she must give you at least eight weeks’ notice of her date of early return, preferably in writing. If she fails to do so you can postpone her return to such a date that gives you eight weeks’ notice, provided that this is not later than the expected return date.
If the employee decides not to return to work after maternity leave, she must give notice of resignation as soon as possible and in accordance with the terms of her contract of employment. If the notice period would expire after maternity leave has ended, you may require the employee to return to work for the remainder of the notice period.
Rights upon returning to work
On resuming work after ordinary maternity leave, the employee is entitled to return to the same job as she occupied before commencing maternity leave, on the same terms and conditions of employment as if she had not been absent.
On resuming work after additional maternity leave, again she is entitled to return to the same job as she occupied before commencing maternity leave on the same terms and conditions of employment as if she had not been absent. However, if it is not reasonably practicable for you to allow the employee to return to the same job, you may offer the employee suitable alternative work, on terms and conditions that are no less favourable than would have applied if she had not been absent.
If you fail to comply with these requirements, you face the potential risk of an employee claiming that you have acted in a discriminatory manner and she may lodge a claim at an employment tribunal. It is essential that you seek professional and expert advice if you are not offering your employee the same role she occupied prior to her maternity leave.
An employee who worked full-time prior to maternity leave has no automatic right to return to work on a part-time basis or to make other changes to her working patterns. However, there are strict rules on how you should deal with any flexible working request and we can advise you how to deal with such requests and provide you with all necessary documentation.
Shared parental leave
New regulations have come into effect allowing parents to share leave and pay following the birth or adoption of their child. Please see our guide on Shared parental leave and pay.
Getting it right
The rules surrounding maternity rights are extremely complex and the costs of failing to meet these requirements can be high – and so can the potential damage to the reputation of your business.
HR:4UK can help you by providing the advice and support you need to meet your legal obligations.
For further help and advice, speak to one of our advisors by calling 01455 444222 or complete our online enquiry click here and an advisor will contact you shortly.