Guide to maternity rights
This is a guide to statutory maternity rights; some employers may provide leave and benefits beyond the statutory minimums. This guide may be read together with the example maternity policy.
Health and Safety
An employer has a general obligation to carry out an assessment of the risks to the health and safety of its employees. Where there are women of childbearing age in the workplace, this must cover the risk to the health and safety of a new or expectant mother. If risks are identified then there is no obligation to avoid that risk until the employer is notified that the employee is pregnant, has given birth or is breast-feeding. The employer must give the employee information about the risk and what action has been taken.
A failure to carry out a risk assessment may be an act of pregnancy or maternity discrimination as may be a failure to act on its findings.
If the risk cannot be avoided, then the employer must alter the employee’s working conditions or hours of work if this would avoid the risk and it is reasonable to do so. Where this would still not avoid the risk or would not be reasonable, then the employer should consider offering the employee alternative work. The alternative work must be suitable and appropriate and the terms and conditions not less favourable than her current terms. If there is no suitable alternative work or the employee reasonably refuses the alternative work, then the employee must be suspended until such point as she is no longer at risk. The employee would be entitled to receive full pay for each week of her suspension, unless she has unreasonably refused an offer of suitable alternative work.
Ante-natal appointments
The employee is entitled to a reasonable amount of paid time off during working hours for ante-natal care. This is irrespective of the employee’s hours of work. There is no definition of what constitutes ante-natal care and it can include relaxation and parent craft classes if these are recommended by the employee’s midwife, health visitor or GP. Time off will include sufficient time for her to travel to and from the appointment.
The employee should inform her employer of the date and time of the appointment. An employer can ask for the employee to provide evidence that she is pregnant and her ante-natal appointments for all but her first appointment.
An employee who is unreasonably refused the right to time off for ante-natal care or not paid her normal rate of pay when taking the time off may bring a claim to the Employment Tribunal. A refusal of the employee’s right or subjecting her to a detriment for taking time off can also result in a claim under the Equality Act 2010 as unlawful pregnancy and maternity discrimination.
Duration of leave
The right to maternity leave applies to all female employees, irrespective of service. The entitlement is to 52 weeks’ maternity leave, made up of 26 weeks’ Ordinary Maternity Leave (OML) and 26 weeks’ Additional Maternity Leave (AML) provided the employee gives birth and has complied with the notification requirements. (It will apply even if the employee gives birth to a very premature but living child or if, after 24 weeks of pregnancy, has a stillbirth.)
There is a minimum compulsory maternity leave period when an employer cannot allow a woman to work. This compulsory maternity leave period is for two weeks (four weeks’ for factory workers) from the day that childbirth occurs. It is a criminal offence for an employer to allow the employee to work during this period.
Commencement of leave
Subject to certain qualifications, it is for the woman to choose when she wishes to start her maternity leave and she must notify the employer of her intended start date (see notification below). However she cannot commence her leave before the beginning of the eleventh week before the expected week of confinement (EWC).
Even if the woman has notified the employer of the date when she wants to start her maternity leave, it may start earlier than that day if:
- the employee gives birth. In which case the maternity leave will commence the day after childbirth; or
- the employee is absent for a pregnancy related reason (other than ante-natal care) in the four weeks before the expected week of childbirth in which case the maternity leave will commence the day after the day of absence. (The employer and employee can agree that the employee’s maternity leave is not triggered by the pregnancy related absence but there is no obligation on the employer to do so.)
Notification requirements
In order to qualify for maternity leave, no later than the end of the fifteenth week before the EWC, the employee must give her employer notice of the following:
- that she is pregnant
- the date of the EWC
- the date that she intends to start her maternity leave.
Although there is no requirement for the employee to provide this information in writing, the employer can require that she does so. NOTIFICATION OF MATERNITY LEAVE AND EXPECTED WEEK OF CONFINEMENT. The employer can also ask the employee to produce a MAT B1 certificate from the doctor or mid-wife.
Once the employee has given notice, within 28 days the employer must notify the employee of her return to work date. If the employee’s maternity leave commences early because of pregnancy related absence or the employee gives birth, again the employer must write to the employee confirming the return to work date. LETTER ADVISING OF REVISED MATERNITY LEAVE END DATE.
The employee may bring forward her maternity leave start date or postpone it. Either way she must give notice 28 days’ before the new start date or original maternity leave start date, whichever is the earlier. The employer must respond in writing within 28 days to advise the employee of her new return to work date.
Whilst on maternity leave
A woman on maternity leave is entitled to maintain her terms and conditions with the exception of remuneration and her service continues to accrue. This means for example, that she continues to accrue holiday entitlement, receive private health insurance, retain private gym membership and use her company car (assuming that latter is for private use as well as business use). The employee is also bound by the obligations in her terms and conditions, whilst on maternity leave, which amongst other things means that if she wishes to resign from her employment, she must give the appropriate notice under her contract.
Although an employee is not entitled to remuneration whilst on maternity leave, she may be entitled to statutory maternity pay (SMP) (see below).
Keeping in touch (KIT) days
An employee may carry out work or training for up to 10 days without bringing either her SMP or maternity leave to an end. There is however no obligation on the employer to provide the employee with 10 days’ work nor is there any obligation on the employee to attend a KIT day.
If an employee comes in for a KIT day, it is for the employer and employee to agree the basis for payment on those days.
Returning from maternity leave
An employee who wishes to take her full maternity leave entitlement does not need to give her employer notice of the date of her return. However she can choose to return from maternity leave early, in which case the employee is required to give her employer 8 weeks’ prior notice or 16 weeks if the individual is an employee shareholder.
If the employee gives insufficient notice, the employer can postpone the date of return either to the original maternity return date or a date that would have been the date had proper notice been given. LETTER FOLLOWING EMPLOYEE’S REQUEST FOR EARLY RETURN FROM MATERNITY LEAVE and LETTER TO EMPLOYEE POSTPONING EARLY RETURN. The employer will have no right to postpone if it did not provide appropriate notification to the employee of the maternity leave end date.
The employee should return to the same job that she was doing before she went on maternity leave. The employee should have the benefit of any improvement in terms and conditions that arose whilst she was on maternity leave. If however the employee is returning from AML and it is not practicable for her to return to her original role then she may be given an alternative role. This however must be a suitable alternative in terms of status, terms and conditions.
If the employee is not permitted to return to the same job on no less favourable terms and conditions, or after AML a suitable alternative, then she may bring a claim to the Employment Tribunal of pregnancy and maternity discrimination and/or automatic unfair dismissal or unlawful detriment.
If an employee fails to return to work she remains an employee and it cannot be assumed that she has resigned. Instead the employee should be treated as any other employee who has not returned to work e.g. if the reason she has not returned is due to sickness, then the absence procedure should be followed which may include payment of sick pay. If an employee has failed to return to work and the employer did not confirm to the employee the maternity leave end date, it would be unlawful of the employer to discipline the employee for failing to return on time.
Statutory maternity pay
An employee will be entitled to SMP if:
- she has 26 weeks continuous service by the end of the fifteenth week (the Qualifying Week) before the EWC; and
- her average earnings in the eight weeks ending with the Qualifying Week equate to at least the lower earnings limit for National Insurance purposes; and
- she has provided her employer with medical evidence of her EWC, this will usually be her MAT B1 form which should be provided no later than three weeks after SMP has started to be paid or as soon as reasonably possible; and
- the employee is still pregnant 11 weeks’ before start of the EWC; and
- she has given her employer 28 days notice of her intention to stop work and for her SMP to start or as much notice as she could where this is not reasonably practicable; and
- the employee has ceased work.
If the employee does not qualify for SMP she may be entitled to Maternity Allowance. An employee should be given an SMP1 form if SMP cannot be paid.
Once an employee qualifies for SMP and ceases work, she remains entitled to SMP even though her employment may subsequently come to an end due to her being dismissed or resigning.
SMP is payable for 39 weeks. The first six weeks are paid at 90% of the woman’s normal weekly earnings. The remaining 33 weeks are paid at either the SMP flat rate or 90% of the employee’s normal weekly earnings, whichever is the lower.
If an employee is entitled to a pay rise between when her SMP was calculated and the end of her maternity leave, her SMP will need to be recalculated so that the increase is treated as if it applied throughout the calculation period. If a bonus is payable whilst an employee is on maternity leave, she may be entitled to receive this depending on the nature of the bonus. Please contact your HR Rely adviser for advice on this area.
Pension
Whilst the employee continues to receive SMP the employer must treat her for pension purposes as if she was receiving her normal pay. However the employee is only required to make contributions based on the pay that she actually receives.
Specific legal protection
There are various protections afforded to employees on the basis of pregnancy and maternity.
Protection from detriment
It is unlawful to subject an employee to a detriment because of their pregnancy or maternity. An example of a detriment might be where the employee is given an absence warning for absences that are related to her pregnancy.
Unfair dismissal
The dismissal of an employee for a reason connected with her pregnancy or maternity, whilst she is pregnant or on maternity leave is automatically unfair. An employee does not need one year’s service to bring a claim of unfair dismissal in these circumstances.
Redundancy
It is automatically unfair to select a woman for redundancy for reasons relating to her pregnancy or maternity. It would also be sex discrimination. There is no service requirement for an employee to bring a claim of automatic unfair dismissal or discrimination.
In addition to this, an employee who is made redundant whilst on maternity leave has the right to be offered suitable alternative employment (where available) to start immediately at the end of her current contract. This is not limited to suitable alternative employment with her employer but includes any associated employer. The effect of this is that an employee on maternity leave has priority over other employees who apply for the role (even if they are “at risk” of redundancy too). Failure to offer the employee suitable alternative work that is available will cause her dismissal to be automatically unfair. There is however no need to create vacancies where none exist, although consideration should still be given to “bumping” where applicable. GUIDE TO REDUNDANCY.
Written reasons
An employer must give an employee written reasons for her dismissal if it takes place whilst she is pregnant or on maternity leave.
Notice pay
An employee who is entitled to no more than six days more than the minimum period of statutory notice is entitled to receive her usual pay if she is dismissed or resigns with notice whilst on maternity leave.
Equality Act 2010
It is unlawful to discriminate against an employee on grounds of pregnancy and maternity. This means it is unlawful to treat a job applicant or employee unfavourably because of her pregnancy or an pregnancy related illness during the protected period (this would ordinarily be from the point that she is pregnant until the end of the maternity leave period unless the employee is not entitled to maternity leave, in which case it will be the end of the two week compulsory maternity leave period). It is also unlawful to discriminate against an employee because she is on compulsory maternity leave or due to her exercising or seeking to exercise her right to OML and AML leave.
FAQs
Salary sacrifice arrangements during maternity leave
One of my employee’s is pregnant with her second child and is due to go off on maternity leave. Currently there is a salary sacrifice arrangement in place enabling her to receiving child care vouchers. She is suggesting that we have to continue to provide the childcare vouchers whilst she is on maternity leave. Is this the case? We thought that childcare vouchers would count as pay and therefore don’t need to be provided.
Yes, you do have to continue providing child care vouchers whilst your employee is on maternity leave.
You are unlikely to be the only employer who thinks that the child care vouchers are pay but for the purposes of the maternity legislation, they are not. HMRC’s view is that childcare vouchers are a benefit. They are after all non-transferable, cannot be converted into cash and are not in fact payable to the employee but a third party.
The law requires that employers must provide all contractual non-cash benefits during the whole of the statutory maternity leave period. This applies even if the benefit is normally provided under a salary sacrifice arrangement. Therefore the employer has to continue providing the child care vouchers for the whole of the maternity period even though there is no requirement for the employee to make any salary sacrifice contribution from her statutory maternity pay.
This advice would also apply to any other salary sacrifice arrangement that is in place with your employee in similar circumstances.
Ante-natal appointments and Keeping In Touch days
We have a part time employee whom we have recently found out is pregnant. She has complied with the various notification requirements. This has included notification of her ante-natal appointments. Some of these appointments are during her working hours, which we find disappointing given that she works 3 days a week and we would have expected her to arrange the ante-natal appointments during her own time. Can we refuse her paid time off for these appointments?
In addition, the employee has indicated that she would want to come back for a few team training days whilst she is off on maternity leave and wants to use her Keeping In Touch days for this. As she is a part time employee, is she entitled to ten Keeping In Touch days or would it be six which is the pro rata equivalent?
A part time employee has the same right as a full time employee in relation to ante- natal appointments and that is to paid time off during working hours for such appointments if it is not possible or reasonable for them to be arranged outside of her working hours. The reality is that most ante-natal appointments are set by the clinic or hospital at specific times of the week and it would be surprising if your employee has little, if any, flexibility to arrange these appointments during her own time.
As for the Keeping In Touch days, your employee is entitled to ten Keeping In Touch days and there is not a right to pro-rata that entitlement. Keeping in Touch days are subject to both the employer and the employee’s agreement, there is no requirement on either party to agree to them but of course it is important that if you refuse a request for your employee to avail herself of a Keeping In Touch day, it is not on account of her part time status.
Is there a difference between Keeping in Touch (KIT) days for maternity/adoption leave and shared parental leave and also, what do we have to pay an employee who has a KIT day?
There is a difference. An employee on maternity or adoption leave can take up to 10 KIT days without it affecting the statutory leave or pay but an employee on shared parental leave can have up to 20 SPLIT days (shared parental leave in touch days) again without it affecting the statutory leave or pay. In relation to the SPLIT day this is irrespective of whether he or she has already taken KIT days during maternity or adoption leave and is 20 SPLIT days for each employee, as opposed to shared with his or her partner.
As for payment for such days, legislation does not set out what you should pay an employee on a KIT day or a SPLIT day. You should therefore check whether you have a policy on payment for KIT or SPLIT days. In the absence of a policy then it is a matter of agreement between you and your employee. Whether following a policy or via agreement with the employee you need to ensure that you comply with the legislation equal pay for equal work and the national minimum wage.