Maternity Leave Obligations

Guidance for SMEs

The Characteristics of maternity leave

The statutory maternity rights in place in the UK are designed to provide the minimum standard of protection to help women reconcile their work and family responsibilities.
In summary, the leave entitlements are as follows:

• Ordinary Maternity Leave (OML). ANY pregnant employee is entitled to a minimum of 26 weeks ordinary maternity leave (OML) during which all normal contractual entitlements other than wages or salary are maintained.

• At the end of the 26 week period the employee must be allowed to return to her old job.

• Employees having 26 weeks continuous service at the 15th week before the expected week of childbirth (EWC), regardless of hours worked, are entitled to an additional 26 weeks of period of additional maternity leave (AML), starting from the end of their ordinary maternity leave.

• All pregnant women are entitled to reasonable paid time off for ante-natal care.

Ordinary Maternity Leave (OML)

All pregnant employees, regardless of hours of work or length of time in employment have had a statutory right to 26 weeks Maternity Leave referred to as ‘Ordinary Maternity Leave’ to distinguish it from Additional Maternity Leave outlined below. In order to exercise her right to Ordinary Maternity Leave the employee must:

• give you notice on before the 15th week of EWC that she is pregnant, the EWC (Sunday to Saturday dates of the week the baby is due) and the date she intends to start her OML.

• If the employee wants to be paid Statutory Maternity Pay (SMP) - see below) she must give you at least 28 days notice of the date she wants to start SMP & her maternity certificate, the MAT B1 form. Normally notice of SMP is given at the same time as notice of maternity leave.

The earliest that her leave may commence is 11 weeks before the expected week of childbirth, although she can continue to work until the day of childbirth if she wishes to do so. She can change her leave dates at anytime by giving her employer 28 days notice.

If the baby is born before the date notified to you for starting maternity leave or if it is born before any date has been notified at all, then maternity leave is automatically triggered. However, your employee should give you notice of the date that she has given birth as soon after the event as is reasonably practicable.

If an employee goes off work for a pregnancy related reason in the four weeks before her EWC, the employer can, of they wish, trigger the maternity leave to start immediately.

Employers' Duty to Respond

After receiving notification that an employee intends to take maternity leave an employer must write to the employee within 28 days and state the date on which she is expected to return. If she is eligible for AML this will be at the end of the AML period.

Returning to Work

If the employee wants to take her full leave entitlement (either 26 or 52 weeks depending on her length of service) she does not need to give you notice. She can simply return on the date her leave ends. However, if she wants to return earlier she must give you 28 days notice.

Other points related to maternity leave

It is a legal requirement that at least two weeks maternity leave is taken after childbirth (four weeks if you work in a factory or workshop).

Women who give birth to a stillborn baby after the 24th week of pregnancy, or whose babies are born live at any stage in pregnancy (even if the baby then dies) are also entitled to all of these rights.

During the period of OML all normal contractual benefits (e.g. holiday entitlement, discounts on goods etc.) with the exception of remuneration continue.

Additional Maternity Leave

Any employee who has completed at least 26 weeks service at the 15th week prior to the expected week of childbirth is entitled to Additional Maternity Leave. This is a period of up to 26 weeks immediately following Ordinary Maternity Leave. There are no additional notification requirements to take AML.

When Additional Maternity Leave has been taken, the employee should be allowed to return to her old job unless this is not reasonably practicable (for example, there has been a general restructure while she has been away). In such circumstances a suitable job at a very similar status, pay and conditions should be offered. If a woman is not given a sufficiently similar job she can make a claim for unfair dismissal and sex discrimination.

Ante-natal care

All pregnant employees are entitled to reasonable paid time off for ante-natal care (which includes relaxation and parentcraft classes). After the first appointment, an employee must produce evidence of appointments on request.

Sickness during pregnancy or at the end of maternity leave

If the employee is sick during her pregnancy and the illness is not related to her pregnancy (e.g. she has a sprained wrist), then she should be treated in the same way as any other employee who is ill.

If she is ill with a pregnancy-related illness (e.g. pregnancy-related high blood pressure) and there is more than four weeks to go before childbirth, she should go on normal sick leave in the same way as any other employee who is ill. Note though that an employee cannot be dismissed for having a pregnancy-related illness, and any such absences must be recorded separately from sickness absence unrelated to pregnancy.

If she is absent from work due to her pregnancy during or after the beginning of the fourth week before the EWC, the employer can automatically trigger the start of maternity leave. However, this is at the employers discretion. It is considered good practice not to trigger maternity leave for the occasional day off in that period.

If the employee cannot return to work at the end of her maternity leave because of illness she should be treated as back at work and on sick leave. She should comply with your normal sickness procedures.

Contractual Rights and Remuneration

An employee on maternity leave preserves her continuity of employment and continues to be regarded in law as an employee. During the 26 weeks of Ordinary Maternity Leave a woman is entitled to receive all her contractual rights except remuneration (remuneration includes wages and salary and may include other things).

Contractual rights include pension rights, holiday entitlement and other benefits such as a company car. It is not clear from the legislation whether other forms of 'pay' (such as bonuses, subsidies etc.) are regarded as 'contractual rights' or 'remuneration'. An employee must however be paid the proportion of any salary related bonuses earned during the period before she went on leave.

While on maternity leave most employees will be entitled to receive Statutory Maternity Pay (paid and reclaimed by the employer) or Maternity Allowance (claimed by employee from Department of Social Security).

Accrual of holiday during OML & AML

Holiday accrues as normal under the contract during the 26 weeks of ordinary maternity leave. During additional maternity leave the employee will accrue holiday under the Working Time Regulations. This entitles all employees to 20 days holiday per year. You may find it easier to allow the employee to continue accruing holidays as laid down in her contract rather than attempting to administer two systems.

Statutory Maternity Pay

To qualify for Statutory Maternity Pay (SMP) an employee must have been employed by you for 26 weeks at the 15th week before the EWC, and still be employed by you at this time, and must have earned, on average more than the lower earnings limit (currently £84 ) in the last eight of those 26 weeks. An employee who does not qualify for SMP may be eligible for Maternity Allowance.

SMP is payable up to 26 weeks and comprises six weeks at 90% of average earnings followed by 20 weeks at a flat rate set by the Government (£108.85 in 2006/7). These payments are subject to NI and PAYE deductions.

SMP is only payable while the employee is actually on maternity leave. However, the maternity pay period can begin at the 11th week before the expected week of childbirth. The latest it can be claimed is the week after the week of the birth.

For current rates, call the Inland Revenue Employers Helpline on 0845 7 143 143.

Paying SMP

SMP is paid by the employer in the same way, and at the same frequency, as if they were paying the employee’s normal wages or salary. All normal deductions should be made and an itemised pay statement sent to the employee.

If the employer believes that the employee is not entitled to SMP they should complete form SMP1 with an explanation why this is the case and provide it to the employee with her maternity certificate Mat B1.

Reclaiming SMP

Although the majority of employers can recover 92% of the SMP from the Government through the NI/PAYE system, small businesses (defined as those whose annual National Insurance contributions are less than £45,000) are reimbursed 100% of the SMP plus an extra 4.5 % ‘compensation’.

Maternity Allowance

Those employees not eligible for SMP may be able to claim Maternity Allowance – they should contact their local benefits agency for information and advice or the WORKING FAMILIES & employee helpline 0800 013 0313.

Health and Safety considerations

Under Health & Safety legislation an employer is required to ensure that working conditions and the kind of work done by an employee who is pregnant, has given birth in the last six months, or is breastfeeding, will not put her health or her baby's health at risk.

You are required to conduct a specific 'risk assessment', to do all that is reasonable to remove or reduce the risks identified and to provide the employee with information on the nature of risks and how they can be prevented.

If it is not possible to avoid the risk, then the employee must be moved to other work or suspended on full pay for as long as necessary to avoid the risks. If the employee unreasonably refuses the alternative work offered, then she will lose the right to be paid during the suspension.

If a pregnant or new mother does nightwork and her doctor issues a medical certificate showing that it may affect her health and safety, the employer must transfer her to day work or suspend her from work on full pay.

In the case of a suspended employee, maternity leave and pay can begin six weeks before her EWC as she will be deemed to be absent for pregnancy related reasons.

Recruiting a pregnant woman

It is against the law for an employer to discriminate against a woman for any reason connected with pregnancy, childbirth or maternity leave. Should you advertise a vacancy and find yourself interviewing a woman who says that she is pregnant (or who is visibly pregnant) you are required to disregard the matter of her pregnancy and assess her against other candidates on the basis of her skills and experience.

Redundancy during pregnancy

Small businesses are often the first to suffer from the effects of any period of economic instability. It may be that you need to restructure your business at short notice.

Any woman who is pregnant or on maternity leave should be treated in the same way as any other employee if her post becomes redundant, except that a woman on maternity leave must be given priority over other workers in being offered any suitable job in the organisation. You should consult with the employee about the likely changes and the impact on her work. You must offer alternative employment if this available.

If no alternative work is available you will need to make the employee redundant. Failure to go through the consultation process could make the redundancy automatically unfair and could lead to an Employment Tribunal claim.

Providing enhanced maternity benefits

Encouraging experienced employees to return to work is in every employer’s interest. They make loyal and committed workers if they feel that they are valued. One way of doing this is by offering enhanced maternity benefits.

This factsheet sets out the basic legal requirements and you may already offer more than this. If you do not, you may wish to consider the possibility of enhancing the statutory minimum. You could, for example:

• pay an employee on maternity leave an amount over an above the SMP – many employers currently do this. Some of these link company maternity pay to minimum return to work requirements. In these organisations, extra payments are repayable if the employee fails to return or returns and fails to stay for a specified minimum period (note that you cannot request repayment of Statutory Maternity Pay). If you include such a clause in your policy remember to draft an agreement to this effect which the employee must sign prior to commencing leave.

• pay a bonus to a woman who returns from maternity leave as an incentive to do so. This is quite common although issues around equal opportunities are now being raised with respect to this practice.

• provide information or financial assistance with childcare. (A separate factsheet on helping employees with childcare - Childcare Options - is available from Working Families).

• provide for a phased return to work or the possibility of flexible working either temporary or permanent (see Managing Flexible Workers SME factsheet by Working Families).
  

A Factsheet of this nature can only provide general guidance. It should not be used as a substitute for independent legal advice. While every effort has been made to ensure the accuracy of its content, we cannot be held responsible for any errors.

June 2006

top