In the UK, all pregnant employees are entitled to a period of up to twelve months of maternity leave to bond with and care for their newborn child. The law on maternity leave and pay can sometimes be difficult for employees to understand, but it is important to be aware of your rights at work regarding maternity leave and pay, as well as what the rules are on how and when you should inform your employer of your intention to take maternity leave and pay.
In this article, the first of our two articles on family-friendly rights, we summarise the law relating to maternity leave and pay, including the rights that employees on maternity leave enjoy. In the second article, which can be found here, we look at the rights of pregnant workers and summarise other forms of parental leave that new parents may consider, such as paternity leave and shared parental leave.
Statutory Maternity Leave
|If you are an employee (rather than an agency worker, a worker on a zero-hour contract or self-employed), you are entitled to take up to a year of maternity leave so long as you provide the correct notice to your employer. It doesn’t matter how long you have worked for your employer or how many hours a week you work. During this time, most of your employment rights will continue.
Statutory Maternity Leave consists of:
- Ordinary Maternity Leave, which is the first 26 weeks (OML)
- Additional Maternity Leave, which is the last 26 weeks. (AML)
As we explain below, there are some differences in the rights enjoyed by employees during these two periods of leave.
You don’t have to take 52 weeks off as leave but all employees must take at least two weeks leave (or four weeks in the case of some factory workers) starting with the date of childbirth. This is known as Compulsory Maternity Leave and is for health and safety reasons.
You must inform your employer at least 15 weeks before your due date, letting them know when the baby is due and when you want to start your maternity leave. It is best to put this in writing.
Starting Maternity Leave
Normally, the earliest you can commence your leave is 11 weeks before the expected week of childbirth.
Leave may automatically start early in certain circumstances, such as your baby being born prematurely or if you are off work for a pregnancy-related illness in the four weeks before the baby is due.
Rights During Maternity Leave
During maternity leave, the contract of employment remains in force and you are entitled to benefit from all the terms of the contract except your salary.
You still accrue your holiday entitlement as usual during maternity leave. Although it isn’t possible to take annual leave or receive holiday pay while you are on maternity leave, you can organise with your employer to take it before or after maternity leave. Also, your employer should allow you to carry it to the following year if you haven’t had a chance to take it.
During your maternity leave, you should receive the same pay rises as any other employee as well as contractual benefits such as health insurance, company car, subscriptions and memberships.
Your employer should not stop making pension contributions while you are on OML or paid AML and should continue to make payments at your normal rate of pay. However, during the unpaid period of AML (which is the last 13 weeks if you are only entitled to SMP), your employer is not required to make pension contributions unless it is specifically provided for in your contract.
The issue of bonuses is a little trickier and generally, you will not be entitled to a bonus unless your contract provides for a bonus during maternity leave. There may be some exceptions, for example, if a discretionary loyalty bonus is given to all employees, regardless of whether they have been present at work for the whole year. However, as the legal position is not clear-cut and will turn on the facts, you may consider seeking legal advice about your entitlement.
Statutory Maternity Pay
If you are employed and take time off to have a baby, you may be eligible for Statutory Maternity Pay (SMP) or your employer may offer enhanced maternity benefits. SMP is the legal minimum your employer usually has to give you while you are on maternity leave.
How Do Employees Qualify for SMP?
To qualify for SMP, you must;
- have worked for your employer for a continuous period of at least 26 weeks when you arrive on the 15th week before your due date
- earn no less than the lower earnings limit (£123 a week in 2023/2024)
- give the required notice and proof that you are pregnant to your employer
You need to inform your employer at least 28 days before the date that you want SMP to start (or give as much notice as possible if it is not practical to give 28 days’ notice). You must also give your employer a completed MAT B1 certificate confirming your expected week of childbirth. This can be obtained from your midwife or doctor.
Amount of Pay
The amount of SMP you will receive varies during your maternity leave. In 2023/24, you would get;
- 90% of your average weekly earnings in the first six weeks
- £172.48 per week (April 2023 to April 2024) or 90% of your average weekly earnings (whichever is less) in the subsequent 33 weeks
- nothing in the last 13 weeks.
Of course, your employer may offer you a more generous maternity benefit than SMP; it depends on what is provided for in your contract of employment. However, an employer can’t provide less favourable terms than the statutory regime sets out.
When Does SMP Start?
SMP usually starts at the same time when your maternity leave commences. An employer will pay SMP in the same way as your salary is paid and tax and any National Insurance contributions will also be deducted.
You are entitled to SMP even if you do not plan to go back to work or your job ends after the 15th week before your baby is due. You do not have to pay back any of your SMP if you chose not to return to work. It will end automatically when you return to work or start a new job, or if you die or are sent to prison. Note, however, that you can work for up to 10 days whilst receiving SMP – these are called ‘Keeping in Touch’ days.
Self-Employment
If you are self-employed, have recently stopped working, or do not qualify for SMP, you may still qualify for Maternity Allowance for up to 39 weeks if in the 66th week before your baby is due, you
- have been employed or registered as self-employed for a minimum of 26 weeks and
- have earned at least £30 a week during thirteen of those weeks.
Challenging a Decision Relating to SMP
If your employer refuses to pay you SMP or you think they are paying you the wrong amount, ask them to explain their reasoning to you and if you are still not satisfied, you can contact HM Revenue and Customs Statutory Payments Dispute Team. You may wish to first seek specialist advice on this matter before going down this route.
Return to Work
Unless you tell your employer otherwise, the expected date of your return will be at the end of AML.
It is necessary to give your employer eight weeks’ notice if you decide to go back to work earlier (or later) than your agreed date. If you choose not to return to work, you must give your employer notice as per your contract - if there is nothing in your contract, you will need to give at least one week’s notice.
If you have taken only OML (the first 26 weeks) or returned to work before the end of your OML, you are entitled to return to exactly the same job on the same terms and conditions.
If you have taken AML and have had more than 26 weeks’ leave, you are still entitled to return to your job on the same terms. However, if this is not possible because there have been significant changes to the organisation and your job is no longer available, you could be offered a similar job, but it must be on the same pay and conditions.
For more detailed guidance on Maternity pay and leave visit the government website here.If you need advice about any aspect of maternity leave and pay and your rights, contact our expert employment team at Witan Solicitors today or send an email to info@witansolicitors.co.uk.
