Maternity leave

Pregnant employees are entitled to take up to 52 weeks statutory maternity leave at the time of the birth of their child, no matter how long they have worked for an employer. It is important that all such employees are aware of the rights which they possess and that employers too are aware of what those rights are and of the likely penalties for disregarding them.

Overview

All pregnant employees - that is to say those who work under a contract of employment - have a number of legal rights relating to that pregnancy and it is vital that they and their employers are aware of these rights and how they might affect them. Those rights, which have been considerably increased where the employee is due to give birth on or after 1 April 2007, include:

• to take 52 weeks maternity leave – made up of 26 week’s ordinary maternity leave (OML) and 26 weeks’ additional maternity leave (AML)
• not to be dismissed for reasons connected with pregnancy or childbirth
• not to be made redundant, or selected for redundancy, on the grounds of pregnancy or childbirth and to be offered alternative employment where possible where redundancy occurs during maternity leave
• to take a reasonable amount of paid time off work for the purposes of antenatal care
• to be able to return to the same job, or a suitable alternative job, when maternity leave comes to an end
• to receive statutory maternity pay for a period of 39 weeks
• if suspended from work on maternity grounds (for example because the work undertaken would be hazardous to the health of a baby), to receive normal pay, unless the employee has turned down suitable alternative work
• access to rest facilities whilst at work if pregnant or breastfeeding

Taking maternity leave

A pregnant employee can choose to start their maternity leave at any time during or after the 11th week before their baby is due, unless they are off work for any reason related to the pregnancy in which case leave will commence automatically from the fourth week before the baby is due.

An employee must inform their employer, preferably in writing, by the end of the 15th week before the baby is due:

• that they are pregnant
• the date upon which the baby is due, and
• the date when the employee would like maternity leave to begin

If requested by the employer to do so, the employee must provide a MATB1 medical certificate which can be obtained from a midwife or GP.

Having been advised by the employee, the employer must then inform the employee in writing within 28 days of the date upon which maternity leave expires and the expected date for the employees intended return to work.

The majority of pregnant employees have the right to take up to 52 weeks’ maternity leave. This no longer depends upon the length of service with an employer. This does not depend on how long you have worked for your employer. Some employees, including police women, women serving in the armed forces and women normally employed abroad, do not have these rights.

Subject to the legal requirement to take at least two weeks leave after a baby is born (four weeks for factory workers) it is entirely up to the employee to choose how much of their 52 weeks they wish to take as leave.

The maternity leave period of 52 weeks is divided into two distinct sections:

• Ordinary Maternity Leave (OML) which is the first 26 weeks of maternity leave, and
• Additional Maternity Leave (AML) – which is the second 26 weeks of maternity leave, and must follow on immediately from OML without a break.

The differences in the rights available during, and indeed entitlement to, the two periods you used to be greater than it is now. However, there are still some distinctions. Those entitlements include:

• During OML, an employee is entitled to the same rights under their contract of employment as if they were still working except that, unless their contract of employment provides to the contrary, they will not get their normal pay although they will still be entitled to build up holiday and to be awarded any pay increase. Instead of normal pay, most pregnant employees are entitled to Statutory Maternity Pay or Maternity Allowance.
• During AML, an employee is still entitled to the certain rights under their contract including normal period of notice, right to redundancy pay and provisions as to grievance procedures. However, some of the contractual terms and conditions will not apply unless the contract of employment provides to the contrary. These include the right to normal pay, contractual holiday pay (though the employee will still build up statutory holiday) or to a pay increase.

Whilst on maternity leave an employee should be kept informed by the employer of issues which could affect them, such as promotion opportunities or job vacancies. Contact between employer and employee during maternity leave should be reasonable. An employee can even work for up to ten days during their maternity leave without it affecting their maternity pay. These are known as ‘Keeping in Touch Days’ and employer and employee should agree at the outset how many such days there will be, when they will be worked and how much the employee is to be paid for them. There is, however, no obligation upon the employee to work these days nor any obligation on the part of the employer to allow them.

Returning after maternity leave

A pregnant employee who wishes to return to work earlier than the date upon which their maternity leave is due to end, must give eight weeks’ notice of the new date to their employer. However, all pregnant employees have the right to return to their old job after the 26 week’s OML without giving notice – they can merely turn up for work.

If an employer refuses to allow an employee to return to work after the OML then they can claim automatic unfair dismissal for a reason to do with pregnancy or maternity leave as well as potentially having a claim for sex discrimination. Such a claim can be made irrespective of the length of time for which the employee has worked. If you wish to make claim for automatic unfair dismissal and/or sex discrimination, you should contact employmentlawhelp and we will be pleased to advise you.

In the event that an employee is ill at the time at which they are due back to work following the end of OML, then they will be protected from unfair dismissal for a further period of four weeks provided they provide their employer with a medical certificate. The OML will still end at the end of the 26th week – the employee will be treated as on sick leave. Any attempt by an employer to dismiss an employee who is sick at the end of the OML is likely to be treated as sex discrimination.

An employee who returns to work after AML is entitled to be offered their old job back unless it is not reasonably practical, in which case they must be offered a suitable alternative job which is appropriate to their circumstances. That alternative job should be on the same terms and conditions as the previous job – e.g. pay and terms should be as good as the old job.

An employee who decides to take AML does not need to inform their employer of their expected date of return as it is assumed that it will be at the end of the AML period. However, an employee who wishes to return to work earlier than this date must inform their employer of that fact in writing, at least eight weeks before the anticipated date of return.

Finally in this section, employees should note that whilst they have no automatic right to return to work part time after maternity leave, nevertheless they may be entitled to ask for flexible working and, whilst it does not have to be granted, it must be considered seriously by the employer. Failure to consider it seriously could amount to sex discrimination.

Maternity pay

An employee is entitled to statutory maternity pay (SMP) for a period of 39 weeks provided they have stopped work and the reason for not working is wholly or partly related to pregnancy or childbirth. To qualify for SMP, the employee must have:

• worked for the employer for least 26 weeks continuously extending into the 15th week before the expected week of childbirth
• average weekly earnings at or above the lower earnings limit for National Insurance contributions (NICs) that applies at the end of the qualifying
• reached the 11th week before the expected week of childbirth or given birth prior to that
• provided the employer with a MATB1 (medical evidence of pregnancy) form
• given the employer 28 days notice of the date from which she wants to start SMP (which can be given at the same time as notice of statutory maternity leave)

In the event that an employee does not qualify for SMP, they may still be able to claim maternity allowance. An employer who is not able to pay SMP must give the employee a copy of form SMP1 setting out the reasons why SMP cannot be paid and this will support the employee’s claim for maternity allowance. The employer must also give the employee the original MAT B1 form back.

An employer is entitled to stop paying SMP if an employee:

• dies,
• is taken into legal custody by the police,
• after the birth, becomes employed by an employer who did not employ the employee during the qualifying week

SMP is paid at the following rates:

• for the first six week, 90 per cent of the employee’s average weekly earnings – note there is no upper limit,
• for the remaining 33 weeks, the lower of either:
  • the standard weekly rate, or
  • 90 per cent of the woman’s average weekly earnings

For more information about maternity leave problems which you may have, or if you have another type of employment problem with which you would like some help, either phone employmentlawhelp on 084 4804 4800, request a free, no-obligation call-back using the form to the right, or email us on advice@employmentlawhelp.co.uk and we will be more than happy to discuss with you the precise needs which you have.