All women, however short their length of service, have the right to maternity leave. The details of this right are set out in the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999 (as amended). A woman has the right to maternity leave if she gives birth to a living child, however premature, or she has a stillbirth after 24 weeks of pregnancy.
All employees are entitled to 26 weeks' ordinary maternity leave, and 26 weeks' additional maternity leave, making 52 weeks in all.
Generally, a woman can choose when her maternity leave begins, although this cannot be before the beginning of the eleventh week before her expected week of childbirth. But the start of an employee's leave can be triggered by two events. One is the birth of her baby. The other is her absence from work wholly or partly because of pregnancy in the last four weeks before her expected week of childbirth. In these circumstances, her leave begins the day after her pregnancy-related absence occurs or on the day after the baby is born.
If an employee is off work with a pregnancy-related illness in those four weeks, her leave can be triggered, even if she had planned to carry on working until just before her baby was due and had informed her employer of that. If it suits the employer and the employee that the woman's leave should not be triggered in this way, there is nothing to prevent them agreeing that her leave will begin on the date she planned, although it would be advisable to put that agreement in writing. If the woman is off work sick in the relevant period with an illness that is not connected with her pregnancy, her maternity leave is not triggered.
Ordinary maternity leave lasts 26 weeks and additional maternity leave runs for a further 26 weeks after that. A woman does not have to take her full leave entitlement, but it is a criminal offence for an employer to allow a woman to do any work in the two-week period after she gives birth, or in the four weeks after the birth if she works in a factory.
In order to claim maternity leave, the employee must let her employer know the week in which her baby is due and the date she wants to start her leave. She must give the notice in or before the fifteenth week before her expected week of childbirth. She can change the date her leave begins, provided she gives her employer notice at least 28 days before the date she originally gave or the new date she wants her leave to start, whichever is the earlier. If for some reason it is not reasonably practicable for a woman to meet these deadlines, she must give notice as soon as it is reasonably practicable. The employer is entitled to ask her to put her leave date in writing.
If the woman's leave has been triggered because of a pregnancy-related absence in the four weeks before the baby is due, or by the birth of the baby, she must let her employer know as soon as she can that she is absent for that reason and give the date on which her absence began. The employer can ask her to put this in writing.
The employer is entitled to ask the employee to produce a certificate from a doctor or midwife confirming her expected week of childbirth. The certificate can be issued from 20 weeks before the week the baby is due. The maternity leave legislation gives no time limit for the employee to produce the certificate, although, in order to protect her right to statutory maternity pay (statutory maternity pay ), she will normally have to do so by the end of her third week of maternity leave.
Once a company receives notice from a woman that she is intending to take maternity leave, or if it hears from her that her maternity leave has been triggered by a pregnancy-related absence or the birth of her baby, it must write to her within 28 days, confirming the date by which she must return to work. If it does not do so, it will be restricted in its ability to postpone her early return to work or to discipline her for failing to return on time (notice of early return ), (unfavourable treatment ). If the employee changes her mind about the start date of her leave, the employer must write to her again, within 28 days of the start of her leave, to confirm her amended date for return. The Department of Business, Enteprise and Regulatory Reform has produced a model letter that employers can use to confirm an employee's return date (maternity leave).
It is important to note that women who do not meet their notice obligations do not lose all their employment rights.
If an employee fails to give proper notice before going on leave, she is not entitled to have her terms and conditions during ordinary maternity leave protected (rights during leave ) and she could be viewed as being on unauthorised absence. But a woman who does not meet the notice requirements is still entitled to the protection of sex discrimination law and, if she has a year's service, unfair dismissal law.
An employer should therefore ensure that it does not treat a woman who fails to meet the notice requirements for maternity leave more severely than it would deal with any other employee who did not meet the notice requirements for a period of absence from work. If it is inclined to dismiss a woman who fails to meet the notice requirements, it must ensure that it has followed a fair procedure before doing so, including the statutory dismissal procedure.
Because of the dangers of liability for unfair dismissal and sex discrimination, a company that is considering disciplining or dismissing an employee for failing to meet the notice requirements is strongly advised to contact its Association for advice before taking any action.
The employment rights that a woman has during her maternity leave depend on the type of leave she is taking and any additional protection she may have under legislation dealing with specific issues such as pensions, holidays and sex discrimination.
A woman on ordinary maternity leave is entitled to all her usual terms and conditions apart from 'remuneration'. For example, she continues to accrue any rights she has to service-related benefits, and she retains any rights she has to a company vehicle, unless it is solely for business use. 'Remuneration' is defined in the legislation as 'sums payable to an employee by way of wages or salary'. It is unclear whether this covers payments that the employee has opted to take in place of other benefits. The specific issue of bonuses is discussed under "Sex Discrimination" below.
Companies that are unclear as to whether a certain payment should be maintained during a woman's ordinary maternity leave are advised to obtain advice from their Association. Although the employee is not entitled to her normal pay during maternity leave, she is likely to be entitled to statutory maternity pay instead during the majority of her leave (smp rate and payment period ).
While on ordinary maternity leave, the employee is bound by all her usual obligations under her contract, except those that are inconsistent with her right to be absent on maternity leave. So, for example, she is still obliged to give proper notice if she decides to resign.
The legislation gives less protection to a woman's terms and conditions during additional maternity leave. The employer continues to be bound by its implied obligation of trust and confidence and must still observe any terms of the woman's employment that relate to notice of dismissal, redundancy payments and disciplinary and grievance procedures. For her part, the employee is still bound by her implied obligation to act in good faith and by any of her terms and conditions that relate to notice of resignation, disclosure of confidential information, acceptance of gifts or other benefits, or participation in any other business.
In all other respects, the woman's terms and conditions are suspended during additional maternity leave unless her contract of employment, or some other agreement she has reached with her employer, states otherwise.
Pension rights are not part of a woman's 'remuneration', and so they must be maintained during her ordinary maternity leave. In addition, the Social Security Act 1989 requires that during any period when an employee is receiving contractual or statutory maternity pay, she must be treated for pension purposes as if she were working normally and receiving her normal pay. The pension contributions that the employee is obliged to make, on the other hand, must be based on the pay she is actually receiving.
Any entitlement that an employee has to paid holiday under the Working Time Regulations 1998 (holidays) is unaffected by the fact that she may be on maternity leave for part of the leave year. She is therefore likely to be entitled to at least 4.8 weeks' paid holiday in addition to her maternity leave. When calculating the holiday pay of a woman who has returned from maternity leave, any weeks during her maternity leave when she was not receiving maternity pay, or when her maternity pay was lower than her normal rate of pay, are left out of account.
Any contractual holiday entitlement that an employee has over and above the statutory minimum will continue to accrue during her ordinary maternity leave but not during her additional maternity leave, unless her contract or some other agreement with her employer says otherwise ( impact of family leave).
As a general principle, a woman who is given the rights outlined above is not entitled to claim that she has been discriminated against on the ground of her sex, even if, as is likely, she is on less generous terms than her colleagues who are still at work. However, in order to avoid breaching the Equal Pay Act 1970 or the Sex Discrimination Act 1975, her employer must still ensure that it does not unduly penalise her for being on maternity leave.
Unfortunately, the law in this area is particularly unclear. The cases that have been decided indicate that a woman on maternity leave is entitled to have her pay rate reviewed or increased on the same date as it would normally be. Therefore, if she is receiving contractual maternity pay that is based on her normal rate of pay, her maternity pay should be increased at that time. (The special rule on how pay rises affect statutory maternity pay is explained in (SMP rate and payment period).
A woman on maternity leave should also receive any bonus that is paid to everyone else in the workforce, if the bonus is based simply on being on the payroll – as, for example, a Christmas bonus may be. On the other hand, a bonus that is based on the work the employee has done over a period, either individually or through her contribution to group or company performance, can lawfully be reduced to reflect the proportion of the relevant period when the woman was on maternity leave. If a bonus is based on performance targets, the targets may need to be reduced to reflect the period of leave. For these purposes, the two-or four-week compulsory period of maternity leave and any periods of absence prior to maternity leave for pregnancy-related reasons should be treated as a period when the woman was at work. Employers who need more detailed guidance may wish to contact their Association.
A woman's contract of employment continues throughout her maternity leave, so she continues to build up continuous service for the purposes of any employment rights that depend on continuous employment ( Calculating qualifying periods ), such as unfair dismissal and redundancy rights.
Statutory maternity pay (SMP) is a social security benefit administered by employers, who are responsible for making payments to eligible employees. The main pieces of relevant legislation are the Social Security Contributions and Benefits Act 1992 and the SMP (General) Regulations 1986 (as amended). HM Revenue & Customs produces a clear and detailed manual on the calculation and payment of SMP (statutory maternity pay ).
In order to be entitled to SMP, a woman must meet the following conditions:
- She must have been continuously employed for 26 weeks by the end of the fifteenth week before the week her baby is due.
- She must have normal weekly earnings in the eight weeks ending with that fifteenth week (the calculation period) of at least the lower earnings limit for SMP (which is reviewed annually and is currently £90 from April 2008).
- She must give at least 28 days' notice of her maternity leave or, if that is not possible, as much notice as she can. Her employer is entitled to ask her to put this in writing.
- She must supply medical evidence from her doctor or midwife of the week when her baby is due. This evidence, usually on Form Mat B1, must be supplied before the end of the third week of her maternity leave, or before the end of the thirteenth week of her leave if there is good reason for the delay.
An employee who meets these qualifying rules is entitled to be paid SMP even if she has no intention of returning to work or resigns when she goes on maternity leave. She will also continue to be entitled to SMP even if she is dismissed after qualifying for it, regardless of the reason for her dismissal.
SMP can be paid for up to 39 weeks. For the first six weeks, SMP is equivalent to 90 per cent of the woman's normal weekly earnings. This is referred to as higher-rate SMP. For the remaining 33 weeks, SMP is paid at a specified flat rate or 90 per cent of the employee's normal weekly earnings, whichever is lower. The flat rate is reviewed annually. From April 2008, it is £117.18 per week.
If a woman receives a pay increase that takes effect at any time from the beginning of the calculation period used to calculate her normal weekly earnings until the end of her maternity leave, the rule is that the increase must be treated as if it had applied throughout the calculation period. This rule may result in low-paid women qualifying for SMP because their earnings are lifted to the lower earnings limit or above. The rule will also affect the amount of an employee’s higher-rate SMP, since that is based on her normal weekly earnings. Her employer will need to recalculate how much her higher-rate SMP should be and pay her any shortfall in the SMP she has already been paid.
SMP should be paid in the same way as the employee's normal wages or salary, with tax and National Insurance contributions deducted.
Employers are entitled to recoup 92 per cent of any SMP that they pay out, by deducting it from their National Insurance payments. Small employers whose annual National Insurance bill is £45,000 or less can recoup their SMP in full, plus an additional 4.5 per cent of that sum to compensate for administration and other costs.
Women who do not qualify for SMP may be entitled to maternity allowance, which they can claim direct from their local Social Security office.
An employer may decide to recruit an employee on a temporary contract to cover for a woman on maternity leave or an employee on parental or adoption leave. If it does, it should bear in mind that the temporary employee will acquire unfair dismissal protection if he or she ends up being employed for a year or more.
It would therefore be advisable to ensure that the employee is fully aware from the outset that he or she is being employed to provide temporary cover only.
When the other employee returns from family leave, the company should consider whether it has any other work it could offer the temporary employee before deciding to terminate his or her contract. The company should also follow the statutory dismissal procedure, which involves holding a meeting with the employee to discuss the situation, at which the employee has the right to be accompanied, and giving the employee the right to appeal against any decision to dismiss ( unfair dismissal ).
If the other employee does not return to work after family leave but the company does not consider that the replacement is suitable for a permanent job, the company should still follow the statutory dismissal procedure and act reasonably in all the circumstances before deciding to dismiss the temporary employee. For example, if his or her competence is in doubt, he or she should be given an opportunity to improve before a decision is made to dismiss.
Regardless of the length of time the temporary employee has been with the company, he or she is entitled to protection from unjustified discrimination on the ground of his or her fixed-term status ( fixed term contracts ) and to be notified of any permanent vacancies that may arise in the company ( recruitment ).
A woman on maternity leave may undertake up to 10 days’ work for her employer during her maternity leave period without bringing her leave to an end. However, there is no requirement for an employee to undertake work during her maternity leave neither is there any requirement for an employer to provide such work. Work for this purpose is broadly defined to include any work not only under the contract of employment but also training and any other activity undertaken for the purposes of keeping in touch with the workplace. These “keeping in touch days” are entirely voluntary but can be of benefit to both employers and employees.