All employees who are expecting a baby have the right to take both six months’ ordinary maternity leave and six months’ additional maternity leave (i.e. 12 months’ in total) regardless of their length of service. These employees usually have the right to return to the same job. The right to maternity leave applies to a woman who gives birth to a living child or has a stillbirth after 24 weeks of pregnancy.
When maternity leave starts
Maternity leave will start on the date that your employee tells you she wants to start her leave, but maternity leave can’t start more than 11 weeks before the baby is due. However, maternity leave can begin earlier than the date the employee chooses if she is absent from work for a reason that is wholly or partly to do with her pregnancy.
It’s a criminal offence for an employer to let a woman work within two weeks of childbirth so women must have these two weeks off. Women can, however, choose to work for up to ten days during their maternity leave without ending their leave.
An employee can only take maternity leave if she gives you, the employer, the correct notice. She has to inform you that she is pregnant; the expected week her baby is due and the date she wants her leave to begin. She has to give you this information at least 15 weeks before the baby is due. Once you receive this notification you should write to the employee within 28 days setting out the date on which the employee’s full entitlement to maternity leave will start and end. Employees can change their return to work date as long as they give eight weeks’ notice.
An employee’s rights during leave
During maternity leave an employee is entitled to all the benefits that she would have received had she not been on maternity leave, except wages and salary. An employee’s employment rights, such as right to pay, holiday and returning to a job are protected during maternity leave.
An employee returning after maternity leave normally has the right to return to the same job that she left. If the job she left was full-time and she would prefer to work in a more flexible pattern, she may request flexible working. If the employee wants to return to work before the end of her maternity leave, she must give you at least eight weeks’ notice of the date she intends to return to work.
If you refuse to allow a woman to return from maternity leave, she will be entitled to claim unfair dismissal.
Statutory maternity pay
Statutory maternity pay (SMP) is a payment that you have to make to eligible employees, even if the employee doesn’t intend to return to work after the child is born.
An employee only qualifies for SMP if:
- She has stopped work wholly or partly because of pregnancy or childbirth;
- She has 26 weeks’ continuous employment with the same employer up to the qualifying week which is the 15th week before the expected week of childbirth;
- Her normal weekly earnings in the eight weeks before the start of the 14th week before the expected week of childbirth were at least £111 gross;
- She has reached the start of the 11th week before the expected week of childbirth.
The employee is entitled to SMP for 39 weeks. For the first six weeks, this is at 90 per cent of her normal weekly earnings before tax. For the rest of the maternity pay period, a flat rate of £138.18 (or 90 per cent of average weekly earnings if this is less than £138.18). SMP is subject to Income Tax, National Insurance contributions and any other regular deductions and should be paid by the same method and at the same time as the employee would usually be paid
You must get proof of the pregnancy before you pay SMP. This can be a doctor’s letter or form MAT1B which is usually issued by midwives or doctors at 20 weeks of pregnancy. The employee must give you proof within 21 days of the SMP start date. Employees must give you 28 days’ notice that they want to start SMP. You then need to confirm that they are eligible, how much they’ll get and when the pay will start and stop.
You can offer more maternity pay than SMP, but you must ensure that the maternity scheme is clear and easily accessible to staff.
You may be able to recover statutory maternity payments from HMRC. Your payroll software can usually tell you how much you can get back.
Shared parental leave reforms
Shared parental leave is due to be introduced in December. It’s a new right that will allow eligible employees – who are mothers, fathers, partners and adopters – to choose how they share time off from work after their child is born or adopted. To take shared parental leave, the baby must be due to be born – or placed for adoption – on or after 5 April 2015.
Help from Lawpack
If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.
Download our solicitor-approved Maternity Leave Policy to protect your business and comply with employment law.