Subject to certain conditions, NHS staff employed under contracts incorporating national Terms and Conditions of Service* and NHS agreements can be entitled to:
- paid maternity leave
- unpaid maternity leave
- the right to return to work
- time off for antenatal care
- not be unfairly dismissed because of pregnancy or childbirth.
These entitlements are governed by the national Terms and Conditions of Service* (referred to here as the NHS Scheme).
Hospital, community health and public health doctors on standard contracts of employment incorporating the national Terms and Conditions of Service* are entitled to the NHS Scheme, as long as they meet the criteria.
Other doctors who are offered or negotiate a contract that incorporates the national Terms and Conditions of Service will also be covered. This includes GPs employed by GMS practices or by primary care organisations after 1 April 2004. The BMA recommends this should include all salaried GPs.
Medical staff who have contracts that do not include the national Terms and Conditions of Service* provisions will either be subject to a local agreement, or to the statutory provisions that fall within the Employment Rights Act 1996 and amending legislation.
In many instances, the NHS scheme is more generous than the statutory provisions and it incorporates all the benefits of the statutory provisions.
The maternity provisions of the NHS are complex. NHS trusts can create their own maternity leave arrangements for doctors not employed under national agreements.
Doctors will be entitled to paid and unpaid maternity leave under the NHS scheme where they intend to return to work and fulfil the following criteria:
- 12 months’ continuous service, without a break of over three months with one or more NHS employers at the beginning of the 11th week before the expected week of childbirth
- notification to their employer in writing before the end of the 15th week before the expected date of childbirth (or if this is not possible, as soon as it is reasonably practicable thereafter):
- of their intention to take maternity leave
- of the date they wish their maternity leave to start. Note: this can be changed by giving the employer at least 28 days’ notice, or if this is not possible, as soon as it is reasonably practicable beforehand
- that they intend to return to work for the same or another NHS employer for a minimum period of three months after the maternity leave has ended and they provide a Mat B1 from the midwife or GP giving the expected date of childbirth.
Where an employee is working part time, including a post as an NHS hospital locum, and qualifies for paid sick leave they will be entitled to maternity leave with pay on the same basis as a full-time employee subject to the same criteria.
Employers are responsible for ensuring that everything is dealt with properly. Following discussions with the employee they should confirm the following in writing:
- the employee’s paid and unpaid leave entitlements, either NHS scheme or statutory
- unless an earlier return date has been given by the employee, her expected return date based on 52 weeks’ paid and unpaid leave entitlement under the NHS scheme
- the length of any period of accrued annual leave which has been agreed may be taken following the end of the formal maternity leave period
- the need for the employee to give at least 28 days’ notice if she wishes to return to work before the expected return date.
Before the employee goes on her maternity leave, agreement should be reached with the employer on any voluntary arrangements for keeping in touch during the maternity leave period including:
- any voluntary arrangements to help her keep in touch with developments at work and, nearer the time of her return, to help facilitate her return to work
- keeping in touch with any developments that may affect her intended date of return.
Be sure to get advice from the BMA at an early stage about your rights and what action you need to take
* Temporary appendix VI(i) of the Terms and Conditions of Service for Hospital Medical and Dental Staff and Doctors in Public Health Medicine and the Community Health Service (England and Wales) 2002; Terms and Conditions of Service for NHS Doctors and Dentists in Training (England) 2016; temporary schedule 24 of the Terms and Conditions - Consultants (England) 2003; Terms and Conditions of Service – Specialty Doctor (England) April 2008 and Terms and Conditions – Associate Specialist (England) April 2008