Maternity leave is an employment right, and is outlined in the Maternity and Parental Leave etc. Regulations 1999. Providing the employee reaches qualifying criteria, they can take a maximum of 52 weeks maternity leave and be entitled to maternity pay. For an employer, working out how much time off an employee is entitled to and...
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Maternity leave is an employment right, and is outlined in the Maternity and Parental Leave etc. Regulations 1999. Providing the employee reaches qualifying criteria, they can take a maximum of 52 weeks maternity leave and be entitled to maternity pay.
For an employer, working out how much time off an employee is entitled to and calculating maternity pay where applicable can be challenging. Getting it wrong can be incredibly costly and result in expensive legal litigation, not to mention reputational damage to your company.
To ensure legal compliance with employment law and mitigate the risk of employment tribunals, contact Employer Advice today on 0800 470 3529.
To qualify for maternity leave an employee must have an employment contract and give you a minimum of 15 weeks’ notice of their due date and that they want to start their maternity leave. (They can change this with 28 days notice.)
As an employer, you must confirm their leave start and end date within 28 days, you must also carry out a risk assessment once the employee has confirmed in writing that they are pregnant.
Employees can amend their return to work date, provided that they give 8 weeks notice.
The earliest point an employee can take leave is 11 weeks before the expected week of birth, unless the baby is born prematurely. By law an employee must take a minimum of 2 weeks leave after giving birth, this is doubled to 4 in the case of factory workers.
Legally employers cannot refuse maternity leave or change the amount of leave an employee wishes to take.
Statutory maternity pay is an entitlement that you must pay to any employee who qualifies. This lasts for up to 39 weeks and is designed to support the employee during their maternity leave entitlement.
If your organisation has a contractual maternity leave policy that includes pay, it cannot be less, in terms of both the length of leave and the amount of pay, than the statutory amount.
If an employee is expecting, they’re legally entitled to statutory maternity leave. This is regardless of how long they have been employed in the role.
The eligibility criteria is as follows:
As an employer, you should be aware that the employee is still entitled to the employment rights that they would normally have, under employment law, whilst on maternity leave. This includes:
Some employment types might differ in the rules for maternity pay entitlement. For example, directors, educational workers, and agency staff.
The statutory amount of leave an employee is entitled to is 52 weeks, this is made up of:
Employees are entitled to 39 weeks pay whilst on maternity leave, this equates to:
As an employer you can offer extra leave and pay through a company maternity scheme (if you have one in place) this is sometimes referred to as occupational or contractual maternity pay.
This can be used to supplement the government’s and can be a great boost to staff morale and can greatly aid in employee retention and productivity.
If you decide you want your business to offer these schemes to employees, you must make your leave and pay policies clear and readily accessible.
Payment of statutory maternity pay must be issued like a salary would be. This can be reclaimed from HMRC (up to 92%)
If you paid less than £45,000 in class 1 National Insurance, in the last tax year then your business is entitled to ‘Small Employers Relief’.
In the event of a premature birth, the employee’s leave will start the day after the baby is born. The employee must show you the confirmed date of birth by providing the child’s birth certificate, signed by a doctor or midwife.
As an employer you must acknowledge receipt of this by providing them in writing, the confirmation of the new end date of their maternity leave. If the child is born very prematurely (15 weeks or more before the due date) you’ll need to calculate SMP.
Your employee may wish to use shared parental leave if they have a partner. This is where the employee ends their maternity leave early and the remaining leave can be used between themselves and their partner, flexibly. This does not apply to the first 2 weeks (4 in the case of factory workers) after the birth, as by law the employee must take this off.
An example of this would be the birth parent taking 30 weeks of their maternity leave then sharing the remaining 22 weeks with their partner.
If you have an employee who is a surrogate, they have the same rights to maternity leave and SMP as any other pregnant employee.
If you employ agency workers, they are entitled to maternity pay if they meet the same qualifying conditions as an employee. They must have been in continuous employment or engagement with an agency and this must be proved for 26 weeks by the 15th week before EWC. Providing this is the case then the agency worker will qualify as in ‘continuous employment’.
Please note: taking sickness absence and annual leave does not affect the worker qualifying under ‘continuous employment’.
If you’re self-employed or make use of self-employed people as part of your business, you might qualify for SMP or Maternity Allowance (MA).
If an individual is self-employed but has another job then they may qualify for SMP, however they must meet the same criteria as any other employee. If the individual doesn’t qualify for SMP then they may be eligible for maternity allowance.
Under the Equality Act 2010, maternity is covered under terms in the list of protected characteristics, namely pregnancy and maternity.
This means you cannot discriminate against anyone based on either pregnancy or maternity and this protects all employees from such discrimination. This includes same sex couples as well as those in mixed sex couples.
There are serious legal repercussions if an employer treats an employee unfairly or neglects an employee’s maternity rights, including employees taking companies to tribunal and employees raising issues with SMP to HMRC.
If you need advice on calculating maternity pay, or any other area of HR and employment law, contact Employer Advice to ensure compliance today on 0800 470 3529.