Employees who are not covered by the NHS Scheme will be covered by whatever contractual maternity leave scheme exists within their employment. Such schemes must be no less favourable than the statutory provisions. Where there is no separate maternity leave scheme employees will be subject to statutory maternity rights which are laid down in current legislation.
All pregnant women who work under a contract of employment, regardless of hours worked or length of service, are entitled to a period of maternity leave. Where women work for more than one employer, they can exercise their maternity rights separately in relation to each.
The length of ordinary maternity leave is 26 weeks. The length of time an employee can claim a statutory maternity payment is up to 39 weeks.
Time off for antenatal care
All pregnant employees are entitled to time off for the purposes of antenatal care. This is not restricted to medical examinations and can include relaxation classes and parent craft classes, as long as these are advised by a registered medical practitioner, registered midwife or registered health visitor. Employees should continue to receive their normal pay during the period of time off.
It is unlawful to dismiss an employee, or select her for redundancy in preference to other comparable employees solely or mainly because she has sought to assert her statutory right to time off for antenatal care.
Protection against detriment
An employee must not be subjected to unfair treatment because:
- She is pregnant
- has given birth
- has taken or sought to take ordinary or additional maternity leave
- has taken or sought to take any of the benefits of ordinary maternity leave
- does not return to work at the end of her leave in circumstances where her employer gives her insufficient or no notice of when it should end and she reasonably believes it has not ended and subsequently returns late
- an employer gives less than 28 days’ notice of the date maternity leave ends and it is not reasonably practicable for her to return on that date and she returns on a later date
- she has been suspended from work for health and safety reasons connected with her maternity.
This protection applies regardless of length of service.
It is automatically unlawful for an employer to dismiss an employee, or select her for redundancy in preference to other comparable employees for reasons connected with:
- her pregnancy
- suspension on health and safety grounds
- taking or seeking to take ordinary or additional maternity leave
- taking or seeking to take any of the benefits of ordinary maternity leave
- not returning to work at the end of maternity leave in circumstances where the employer gives insufficient or no notice of when it should end.
It is also unlawful to dismiss an employee who does not return to work on time because the employer has not properly notified her of the date maternity leave ends and she reasonably believes it has not ended, or she has been given less than 28 days’ notice of the date it ends and it is not reasonably practicable for her to return on that date. There is no minimum service requirement to claim for unfair dismissal for an automatically unfair reason.
Regardless of an employee’s length of service they have a right to an accurate written statement of the reasons for dismissal, and do not have to request one. Failure to provide such a statement may give rise to a claim for unlawful discrimination on grounds of sex or marriage. These rights also apply to doctors covered by the NHS Scheme.
Compulsory maternity leave
An employee must take a period of two weeks’ compulsory maternity leave from the date of childbirth. If the compulsory maternity leave period falls later than 26 weeks after the start of ordinary maternity leave, the period of ordinary maternity leave will continue until the end of compulsory maternity leave. All the entitlements and conditions which apply during ordinary maternity leave will continue to apply throughout compulsory maternity leave.
Additional maternity leave
All employees are entitled to take 26 weeks' additional maternity leave following the ordinary maternity leave period. There should be no gap between the ordinary maternity leave and the additional maternity leave. The additional maternity leave period will be unpaid unless the local maternity scheme to which the employee is subject allows for it to be paid.
The contract of employment continues throughout the ordinary and additional maternity leave period unless either party expressly ends it or it expires.
During the ordinary maternity leave period an employee has a statutory right to continue to benefit from their terms and conditions of employment. For example, if annual leave would normally accrue whilst the employee is normally at work it will continue to accrue during the ordinary maternity leave period.
An employee cannot take annual leave during her ordinary or additional maternity leave, but can take it immediately before or after maternity leave subject to the employer’s agreement.
Occupational pension schemes
During periods of paid ordinary or additional maternity leave an employer’s pension contribution should be calculated as if the employee is working normally. If the rules of the scheme require the employee to contribute towards her occupational pension her contribution should be based on the amount of contractual pay or Statutory Maternity Pay (SMP) which is being paid to her.
Statutory maternity pay
All employees who are pregnant or who have just given birth will be entitled to receive SMP from their employer (which is reimbursed by the state) for up to 39 week) if:
- they have worked continuously for their employer (the NHS does not count as one employer for these purposes) for at least 26 weeks ending with the qualifying week, which is the 15th week before the expected week of childbirth; and
- their average weekly earnings in the eight weeks up to and including the qualifying week (or the equivalent period if they are paid monthly) has been at least equal to the lower earnings limit for national insurance contributions ( see supplement )) (although they do not actually have to have paid any contributions) and
- they have notified their employer no later than the end of the 15th week before the expected date of childbirth that they are pregnant; the expected week of childbirth (through the production of a Mat B1 certificate signed by the doctor or midwife) and the date when they intend to start taking leave, which should not be earlier than the beginning of the 11th week before the expected week of childbirth and
- they must be employed after the start of the 15th week before the baby is due.
An employee can work right up until the date the baby is born and still retain the full entitlement to SMP.
The first six weeks of SMP are paid at 90 per cent of the employee’s average weekly earnings and the remaining 33 weeks are paid at the lesser of the SMP standard rate (see supplement for most up-to-date rate) or 90 per cent of the woman’s average weekly earnings. Also read our page on Statutory Maternity leave.
The employee does not have to return to work to be paid SMP.
Where an employee does not quality for SMP they may be entitled to the Maternity Allowance (MA). This can also be claimed by those who are self-employed. Their entitlement is based on the employment and earnings in the 66 weeks ending with the week before the expected week of childbirth.
To qualify, a woman must have been employed or self-employed in at least 26 weeks in the 66 week period and her gross earnings must be at least £30.00 a week averaged over a 13 week period. A woman may continue working right up until the date her baby is born and still retain her full 26 week entitlement to the MA.
For those who qualify for the MA, the MA weekly rate is the lesser of the MA standard rate (see supplement for most up-to-date rate) or 90 per cent of the woman’s average weekly earnings. It is only payable while the woman is absent from work and for a maximum period of 39 weeks.
Those women who are not employed or self-employed but who regularly take part in the business of their self-employed spouse or civil partner may be entitled to a maternity allowance payment.
The MA period will normally start no earlier than the 11th week before the expected week of childbirth or in the case of a woman who is unemployed, the 11th week before the expected week of childbirth. Doctors wishing to claim the maternity allowance should ask for an MA claim pack at their JobCentre Plus or social security office, or maternity or child health clinic.
Keeping in touch
The employer may make contact with the employee (and vice versa) while she is on maternity leave, as long as the amount and type of contact is not unreasonable, to discuss a range of issues, eg her plans for returning to work; to keep her informed of important developments in the workplace etc.
The employee should be informed of any relevant promotion opportunities or job vacancies that arise during maternity leave. The employee can do up to 10 days’ work under her contract of employment, as long as both she and her employer have agreed for this to happen, and agreed on what work is to be done and how much she will be paid for it. These are known as keeping in touch days.
The employee cannot be forced to work during her maternity leave. This will not bring the maternity leave period to an end and will not extend the duration of the maternity leave period.
Return to work
No notice is required by an employee who intends to return to work immediately after the end of their maternity leave period (either ordinary or additional). Employees who wish to return before the end of the ordinary or additional maternity leave period are required to give their employer eight weeks' notice of the date of return.
Where an employee is unable to return to work at the relevant time due to sickness the normal contractual arrangements for sickness absence will apply, the employer should be notified in the normal way.
Where an employee does not wish to return to work after maternity leave she must give the notice of termination required by her contract of employment or where there is none, the statutory notice.
An employee has a right to return to the same job on the same terms and conditions of employment, unless a redundancy situation has arisen, after the ordinary maternity leave period. The same rule applies to those who return after additional maternity leave, but where it is not reasonably practicable for them to return to the same job they should be offered a similar job on terms and conditions which are no less favourable than their original job.
Sickness prior to maternity leave
Where an employee has an illness that is not pregnancy related the normal sickness provisions will apply up until the date notified for the start of maternity leave.
Where the illness is pregnancy related and occurs after the beginning of the fourth week before the expected week of childbirth, SMP or the MA will start automatically on the day after the first day she is absent from work because of a pregnancy related illness.
Odd days of pregnancy related illness may be disregarded at the employer’s discretion.