Maternity Leave

Maternity Leave

All pregnant employees and new mothers (regardless of length of service and hours worked) are entitled to  paid time off for anti-natal care, normal sick rights for pregnancy related sickness and 52 weeks maternity leave. General health and safety laws have implications in relation to women who are or have been pregnant, within the last six months. Rest facilities, non smoking zone etc. will be required.

Maternity leave is made up of 26 weeks ordinary maternity leave (OML) and 26 weeks additional maternity leave (AML) with no gap between.  Women on OML are entitled to normal contractual benefits (e.g. accrual of holidays) and are entitled to return to their job.

Women on AML are entitled to benefit from the general rights in relation to notice, redundancy, disciplinary and grievance procedures.  The have a right to return to the same job or if this is not practically possible, to a similar job on terms that are no less favourable. The right is  to return to the same job or if this is not reasonably practicable for the employer, to permit her to do a job that is both suitable for her and appropriate for her in the circumstances .

Maternity Pay

Employees with 26 weeks’, either full or part time, continuous service are entitled to statutory maternity pay (SMP).  Women who do not qualify may be entitled to maternity allowance.  SMP is paid dring maternity leave.  It is payable at the rate of 90% of the woman’s average weekly earnings in the first 6 weeks.

A further 33 weeks are paid at the standard rate set by the Government which is £145.18 (2018) per week or 90% of average weekly earnings whichever is the lower.   Employers can generally recover 92% of SMP payments or more.  The SMP can be recovered by deduction from PAYE and National Insurance Payments.

There are certain formalities in connection with return to work.  The employee does not have to give notice if she intends to return to work at the end of leave.  If she wants to return before the expiry of her leave or change any previous notification, she must give eight weeks’ notice.  The employee may not work for the first two weeks after the baby is born (four weeks in the case of a factory).  If the employee does not wish to return on the expiry of maternity leave she must give notice required by the contract.

Employers may maintain reasonable contact with a woman on maternity leave, such as to discuss the arrangements for her return. Employees may take up to 10 “keeping-in-touch” days during maternity leave, allowing work under their contract of employment with agreement by the employer.

Employees who wish to return to work earlier or later than agreed must provide eight weeks’ notice, unless the employer has waived this.

Employees have the right to return to the same employment after maternity leave. There may be exceptions if the employee takes more than 26 weeks of maternity leave, and if it is not reasonably practicable for the employer to keep the job open. In that case, the employee must be offered a suitable job on terms and conditions that are no less favourable.

Pregnant employees and those on maternity leave are protected under sex discrimination legislation against unfair treatment and, in particular, dismissal on the grounds of sex, pregnancy, or maternity leave.

Maternity rights are available to both part-time and full-time employees, and they apply regardless of how many hours are worked. There is a length of service qualification.

Time off to attend antenatal appointments should be paid at the employee’s normal rate of pay. Antenatal care may include parentcraft classes as well as medical examinations. It may also include relaxation or parentcraft classes on the advice of a healthcare professional. The entitlement to time off for antenatal appointments applies regardless of the length of service.

The contract of employment continues through ordinary maternity leave and additional maternity leave. A woman may not be selected for redundancy or have her contract terminated solely or principally because she is pregnant or on maternity leave. An employee has the right to benefit from terms and conditions of employment that would have applied had she been at work, except for salary and wages. This may include rights to participate in share schemes, reimbursement of professional subscriptions, and membership of clubs.

Periods of ordinary maternity leave count toward continuity of employment for other statutory rights, including seniority, pension rights, and length of service payments. After October 2008, this applies to both ordinary and additional maternity leave.

During paid maternity leave, whether ordinary or additional, the employer’s pension contribution should be calculated as if the woman is working and receiving normal remuneration. Paid maternity leave includes statutory maternity pay or contractual maternity pay, or a combination of both. However, if the employee does not return when maternity ends and uses up the rest of unpaid additional maternity leave, the employer need not continue the pension contribution during the unpaid leave, unless the contract otherwise provides.

Annual leave continues to accrue during maternity leave. It is not possible, however, to take annual leave during maternity leave, but the right to accrue continues. Accrual continues during ordinary maternity leave.

It is not possible to carry over statutory annual leave from one year to the next or to pay the employee in lieu of untaken statutory leave. The employer-employee contract may provide otherwise.

A woman returning from ordinary maternity leave is entitled to return to the same job in the same condition. She is entitled to any general improvements in salary, terms, and conditions that have been applied to the class of work in question during her leave. This also applies to a pay rise applying to the category during her absence.

A woman taking additional maternity leave is entitled to return to the same job unless there is a reason why it is not reasonably practicable. However, she should be offered a similar job on not less favourable terms and conditions.

If a redundancy occurs during maternity leave, the woman is entitled to be offered a suitable alternative vacancy where available. This may be with an associated or successor employer. A new contract takes effect immediately on termination of the existing one. The work done by the employee must be suitable and appropriate to her circumstances, capacity, and place of employment, and other terms and conditions must not be substantially less favourable than if she had continued to be employed under the original contract.

If an employee is validly made redundant during ordinary or additional maternity leave, the period comes to an end. She is entitled to a written statement of the reasons for dismissal. If the reasons are not provided, or are inadequate or false, an application may be made to the Industrial Tribunal on the basis of unfair dismissal. The right to statutory pay will continue for up to 39 weeks, once the qualification has arisen.

Statutory Maternity Pay and Allowance

The right to statutory maternity pay arises when the woman has worked for her employer for a continuous period of at least 26 weeks ending with the qualifying week. The qualifying week is the 15th week before childbirth. Average weekly earnings in the eight weeks up to and including the qualifying week must be at least the lower earnings limit for national insurance contributions.

Advance notification of intentions must be given. Once the employee leaves work after the start of the 15th week before the baby is due, SMP entitlement commences. It continues up to 39 weeks.

Statutory maternity pay is paid irrespective of the intention to return to work. The employer must pay statutory maternity pay, even if the employee leaves employment before the period starts or during the maternity pay period.

Employers may deduct SMP from PAYE and national insurance contributions, student loans, and construction industry payments to an amount equal to 92%.

Small employers may qualify for small employer’s relief, which allows 100% recovery plus 4.5% to cover national insurance costs. A small employer is one who pays class 1 insurance of £45,000 or less in the preceding year.

Maternity allowance is paid to women for a maximum of 39 weeks. It is paid by a Social Security Agency. It is payable if women are employed but do not qualify for statutory maternity pay, have been recently employed, or are self-employed.

The entitlement is based on employment and earnings in the previous 66 weeks. Women must have been employed or self-employed for at least 26 weeks in the 66-week period. They need not be consecutive.

Women’s gross earnings on average must be not less than the maternity allowance threshold, which is £30 per week at present in the case of multiple employments. Income and earnings received are aggregated.

If the woman is self-employed and does not have a small earnings exemption certificate, she is deemed to have earnings that result in the standard rate of the maternity allowance at the end of the week covered by the class 2 contribution. If she is self-employed and holds an exception, a small earnings exemption certificate, she is deemed to have earnings equal to the maternity allowance threshold of £30 a week, at the end of the week covered. Employed earnings and self-employed earnings can be aggregated. If the woman satisfies the employment and earning rules, maternity allowance may be paid for up to 39 weeks. The weekly rate is the lower of the flat rate, £123.06 for 2009-2010, or 90% of the average weekly earnings, whichever is less.

To take maternity leave, an employee should give notice to an employer not later than the 15th week before the baby is due or as soon as reasonably practicable. The notice should state that she is pregnant, the expected week of childbirth, and when she wants maternity leave to start.

The employer must notify the employee of the end date of maternity leave within 28 days of receiving the notification. The employee can change the date she wishes to start as long as she gives 28 days’ notice.

The employer may make contact with the employee and vice versa for as long as the amount and type of contact is not unreasonable.

The employee can do up to 10 days of work under the contract of employment provided both parties agree.

If the employee returns at the end of a full 52 weeks of maternity leave and has not told her employer she wishes to come back at any other time, no further notice is required. The employee can change the return date by giving eight weeks’ notice to the employer. If the employee decides not to return at the end of the period, she may continue to receive statutory maternity pay and leave. She must give the standard notice on termination of employment.

Employers’ Health, Safety, and Welfare at Work legislation have particular implications for pregnant employees and breastfeeding mothers. Employers must assess the risk to all employees, including new and expectant mothers, and take steps to control the risks.

A risk assessment must be taken immediately once the employee is known to be pregnant, with particular attention given to factors that impact and affect the health and safety of new or expectant mothers. This includes long hours, stress, violence, exposure, and manual handling.

If risks are identified that cannot be avoided, steps are required to ensure the employee is not exposed to the risk. This may involve changing working conditions, hours of work, or even the nature of work. If no alternative steps or suitable work are possible, the employee may need to be suspended on full pay.

Adoption Leave

There are similar rights in connection with adoption leave. A couple can decide which partner takes the adoption leave.  Most employees who qualify for adoption leave would also be entitled to statutory adoption pay.

SAP is paid for 39 weeks at £145.18 (2018) per week or 90% of average earnings whichever is the less. Employer’s can recover 92% of the payments and in certain circumstances 104.5% of the payments.