Maternity Pay and Leave
Employment law- Maternity Pay and Leave
What are your maternity rights?
Your main rights are as follows:
- As an employee, you will be entitled to up to 52 weeks Statutory Maternity Leave.
- You will receive Statutory Maternity Pay, provided you have been employed continuously for 26 weeks prior to the 15th week before your expected week of childbirth. Please see below for the amount of statutory maternity pay you should receive.
- Your contractual benefits, accrual of annual leave and employer pension contributions will continue throughout maternity leave.
- At the end of your Maternity Leave, you have the right to return to your job. If a redundancy situation arises, you must be offered a suitable alternative role if one is available.
Statutory Maternity leave
Statutory Maternity leave entitles employees to up to one year off work. This is broken down into 26 weeks of Ordinary Maternity Leave and 26 weeks of Additional Maternity Leave. Whilst you must be an employee to be entitled to Statutory Maternity Leave, as long as you provide the correct notice, you are still entitled to Statutory Maternity Leave regardless of how long you have worked for your employer, how many hours you work or how much you are paid.
Your entitlements to pay and benefits during Statutory Maternity Leave
Whilst you are on Statutory Maternity Leave your employment terms and conditions are protected. You keep your normal employment rights and benefits (excluding wages) throughout the whole of of your Statutory Maternity Leave. Benefits such as accrual of annual leave, health club membership or health insurance will therefore continue. You may also be entitled to be paid any bonus which is awarded whilst you are away on leave. If your employer contributes to an occupational pension scheme, they must carry on making their usual contributions for the whole time you are on “Ordinary Maternity Leave” (the first 26 weeks of Statutory Maternity Leave), for any time you are receiving any Statutory Maternity Pay and for any time you are receiving contractual maternity pay. You also build up all your entitlements to paid holiday during your Statutory Maternity Leave.
If you want to take Statutory Maternity Leave, how much notice must you give to your employer?
You must give your employer notice of your intention to take Statutory Maternity Leave at least 15 weeks before the beginning of the week your baby is due. Of course, it may be that you did not realise you were pregnant, in which case, it is required that you tell your employer as soon as possible if you have missed the deadline. You need to inform them that you are pregnant, when the baby is due and when you want to commence your maternity leave, although you will be able to change this date later, provided you give at least 28 days’ notice.
Statutory Maternity Pay
Whilst Statutory Maternity Leave entitlement is not dependent on a qualifying period of employment, Statutory Maternity Pay is conditional upon the following:
As an employee seeking to claim Statutory Maternity Pay you must have 26 weeks’ continuous employment with the employer up to and including the 15th week before the Expected Week of Childbirth (“EWC”).
You must also have average earnings of at least the lower earnings limit for National Insurance during the eight-week period ending with the 15th week before “EWC”. This is currently £118 a week (as at 2019).
Statutory Maternity Pay is payable for 39 weeks. For the first 6 weeks, 90% of your earnings are payable. For the remaining 33 weeks, you are currently only entitled to £148.68 a week (correct from 7th April 2019). Please note, however, your Maternity Pay will continue at 90% of your earnings for the full 39 weeks if that amount is lower than £148.68 per week.
Will I still receive Statutory Maternity Pay if you return to work during the Statutory Maternity Pay period?
The first 10 days you work during your Statutory Maternity Pay period will not affect your entitlement. After this, you will lose Statutory Maternity Pay for each week in your Statutory Maternity Pay period which you work.
If I am not an employee, am I still entitled to statutory maternity pay?
If you are a worker, you may not be entitled to Statutory Maternity Pay as you do not have the same automatic rights as employees. Your employer may, however, allow you to take unpaid leave, or alternatively you could take paid holiday.
My ex-employer is refusing to pay my SMP, what should I do?
If your ex-employer becomes insolvent or refuses to pay your SMP, HMRC becomes automatically liable to pay the rest. If you think that your SMP is not being calculated or paid correctly, you should ask your employer to explain your SMP.
What happens if I face disciplinary proceedings during maternity leave?
The fact that you are on maternity leave does not, on its own, prevent your employer from investigating genuine disciplinary issues (although they should not contact you at all within the first two weeks of your maternity leave). That said, your employer should take care to ensure that you are not at a disadvantage during the disciplinary proceedings because you are on maternity leave, otherwise this could be maternity discrimination.
What happens if I face redundancy during maternity leave?
At the end of maternity leave, you have the right to return to your original job. If a redundancy situation arises, this is one of the few areas of law where an employer is allowed to “positively discriminate”. You have the right to be offered any suitable alternative vacancy, if one is available, without an interview. This right is over and above what your colleagues are entitled to that are not on maternity leave, so you could effectively “jump the queue” in relation to a new role. The reality, however, is that employers do not always pro-actively source new positions as much as they should, so this needs to be carefully monitored. If your employer cannot offer you suitable alternative work, or you reject a suitable alternative role that is offered to you, you may be entitled to redundancy pay.
Unlike most cases of unfair dismissal, you do not need to have worked for your employer for 23 months and 3 weeks to obtain the right to jump the queue for suitable alternative roles if there is a redundancy situation while you are on maternity leave. If there is a suitable alternative role available and your employer fails to offer it, your dismissal will be automatically unfair.
The same right to “jump the queue” for suitable alternative roles applies if you are on adoption leave, or shared parental leave.
You do not, however, have the right to “jump the queue” if you are made redundant while you are pregnant, but before your maternity leave starts. In these circumstances, your employer would only have the normal obligations in relation to redundancy, including the duty to look for a suitable alternative role for you. However, if you think you are being made redundant because of your pregnancy, then this could be pregnancy discrimination.
I am being made redundant while I am on maternity leave, how should my redundancy pay be calculated?
Your redundancy pay (statutory or contractual) should be based on your normal weekly pay before you started your maternity leave. It should not be based on your statutory maternity pay or your contractual maternity pay. This is the case even if you have used all 39 weeks of your statutory maternity pay (see our page on Maternity Pay & Leave for more information). If you have contractual redundancy pay, then your employer should also base this on your normal pay before you went on maternity leave. Otherwise this could be pregnancy discrimination.
I am leaving employment before my SMP starts, but I still qualify to receive it. Can it be paid as a lump sum?
Normally, SMP is paid weekly or monthly in the same way your salary would normally be paid. However, in theory, yes it could be paid as a lump sum as part of a settlement agreement upon the termination of your employment.
It is not possible to give up your right to receive SMP. There are very strict criteria your employer must meet if it wants to pay your SMP as a lump sum:
- the settlement agreement must specifically state that SMP is being paid (and must show how much is being paid) and
- tax and National Insurance contributions on the SMP must have been correctly paid.
Your employer may be cautious about agreeing to pay SMP as a lump sum, as they could be liable to pay it again if the requirements have not been met.
What happens if I am dismissed during my maternity leave?
If you are dismissed during maternity leave, your leave will come to an end. If, however, you are entitled to Statutory Maternity Pay, you should continue to receive this for the remainder of the 39 week period.
If you are dismissed because you have been discriminated against by reason of your being on maternity leave, you may have a claim for pregnancy discrimination and you may also have a claim for unfair dismissal.
Am I entitled to written reasons for my dismissal?
If you are dismissed during pregnancy or maternity leave, you have an automatic entitlement to a written statement without having to request it (regardless of your length of service).
Do I have the right to work flexibly following my return from maternity leave?