Factsheet: Maternity Rights

September 2006

New rights to maternity leave and pay apply if your baby is due on or after 1 April 2007, it doesn’t matter when your baby is actually born. This factsheet sets out the rights that apply to babies due before and after 1 April 2007.

Most of the rights in this factsheet apply to employees. If you are self employed or an agency worker please see our factsheet on atypical workers.

Always check your contract of employment as it may offer you better rights than the law. Your contract can offer you better, but not worse, rights than the statutory minimum.

Maternity Leave

For babies due before 1 April 2007

If you are an employee you are entitled to 26 weeks of Ordinary Maternity Leave (OML), regardless of your length of service or the number of hours you work, providing you give the correct notice, see Notice below. If you have worked for your employer for 26 weeks by the 15 th week before your baby is due you are entitled to a further 26 weeks of Additional Maternity Leave (AML).

For babies due on or after 1 April 2007

If you are an employee you are entitled to 52 weeks maternity leave, regardless of length of service or the number of hours you work, providing you give the correct notice, see Notice below. Your maternity leave will still be divided into 26 weeks OML and 26 weeks AML and your rights will still be different during each period of leave, see our factsheet Rights during Maternity Leave, with different rights to return to work depending on whether you return after OML or AML, see our factsheet After Maternity Leave.

Maternity Pay

For babies due before 1 April 2007

If you qualify for Statutory Maternity Pay (SMP) or Maternity Allowance (MA) it will be paid for 26 weeks i.e during your OML period.

For babies due on or after 1 April 2007

If you qualify for SMP or MA it will be paid for 39 weeks. As you will also qualify for 52 weeks maternity leave, SMP will be paid during your 26 weeks OML and for 13 weeks of your AML.

SMP

If you are paid through Pay As You Earn (PAYE) with tax and National Insurance deducted by your employer you may be entitled to SMP, as long as you meet the qualifying conditions. SMP is paid by your employer in the usual way. All employers can claim SMP back from HM Revenue and Customs. You are entitled to SMP even if you do not intend to return to work and you cannot be asked to repay it. If you receive extra contractual maternity pay you can only be asked to repay it if it is stated in your contract or agreed with your employer.

Service Condition

To qualify for SMP you must have 26 weeks continuous service by the end of the 15 th week before your baby is due. This roughly means that as long as you started the job before you became pregnant, and you have worked for at least a day or part of a day in each week since then, you will meet the service requirement. Maternity weeks are from Sunday to Saturday. Not all breaks from employment will break your continuous service. Breaks where you were on annual leave, sick leave, parental leave or taking time off for dependents will not break your continuous service. If you leave your job or are dismissed after the 15 th week before your baby is due, you will still be entitled to SMP.

Earnings Condition

To qualify for SMP you must also have earned at least £84 per week on average in the calculation period. The calculation period is the eight weeks, if you are paid weekly, up to and including the 15 th week before your baby is due. If you are paid monthly, the calculation period is usually based on the last two monthly payments received before the end of the 15 th week before your baby is due. To work out the average if you are monthly paid, add up the pay on the payslips, divide by the number of months covered (this will usually be two), multiply by 12 and divide that number by 52, to get a weekly average. Pay can include holiday pay, bonuses, overtime, sick pay and any previous periods of SMP but not Maternity Allowance.

If you meet these conditions, you will be entitled to SMP. SMP is paid at 90% of your average earnings for the first 6 weeks and then at a flat rate of £108.85 per week or 90% of your average earnings if that is less. You will receive the flat rate for 20 weeks if your baby is due before 1 April 2007 and for 33 weeks if your baby is due on or after 1 April 2007. You should check your contract as you may get more than the legal minimum. Your contract can offer you more but not less than SMP. The flat rate is expected to rise to £111 from 6 April 2007 and you will automatically receive the increase if it falls during your maternity pay period.

To claim SMP give your employer notice, see Notice below, and your MATB1 form. Your employer will work out whether you qualify for it. If you do not qualify for SMP, your employer must give you form SMP1. If you think your employer has done the calculation wrongly, or if they haven’t come to a decision within four weeks of giving notice for SMP, you can ask HM Revenue and Customs to intervene. Call your local tax office for details of how to do this.

Maternity Allowance

If you do not qualify for SMP, you may still be able to get MA. This is paid by the JobCentre Plus directly to you. This factsheet explains how MA is calculated for women who are, or have been, employed. If you are claiming MA as a self employed person, please see our factsheet on Atypical Workers.

Employment Condition

To qualify for MA you must have worked for at least 26 weeks in the 66 weeks (15 months) before your baby is due. The work does not have to be continuous, or for the same employer.

Earnings Condition

You also need to find at least 13 weeks in the 26 weeks of work in which you earned at least £30 per week. The weeks do not have to be continuous or for the same employer and you can add together earnings from more than one job. You should use the 13 weeks where you were paid the most. Pay can include holiday pay, bonuses, overtime, sick pay and any previous periods of SMP but not Maternity Allowance.

To work out your average earnings add together all your earnings in the 13 weeks and divide by 13. Maternity Allowance is paid at a flat rate of £108.85 for the whole period or 90% of your average earnings if that is less. You will receive MA for 26 weeks if your baby is due before 1 April 2007 and for 39 weeks if your baby is due on or after 1 April 2007.

You can claim MA from your local Jobcentre Plus on form MA1. You will need to send your MATB1, 13 weeks’ payslips or written proof of your earnings and, if you are employed in the 15 th week before your baby is due, form SMP1 from your employer stating why you are not entitled to SMP. The JobCentre Plus will work out whether you qualify for MA. If you do not qualify for MA they should automatically check whether you are entitled to Incapacity Benefit (IB). IB is not means-tested but depends on whether you have paid or been credited with sufficient NI contributions in the previous 3 years.

If you have two or more jobs

If you are an employee for two or more employers, you will get maternity leave from each job and you do not have to start each period of maternity leave at the same time. If you qualify for SMP from both jobs you will get two lots of SMP. However, if you do not qualify for SMP from job A you cannot get MA for job A if you are already getting SMP for job B and, if you do not qualify for SMP for both jobs, you cannot get two lots of MA (although your calculation of earnings for MA can be based on earnings from two or more jobs).

The start of maternity leave and pay

The earliest you can start your maternity leave and pay is 11 weeks before your baby is due unless you give birth before then. It is up to you to decide when you wish to start your maternity leave and you can work right up to the birth if you wish. Your leave will start on the day stated in your notice.

If your baby is due before 1 April 2007 , your maternity pay will usually start on the Sunday after you start your maternity leave. However, if you are off work with a pregnancy-related absence in the four weeks before your baby is due, your employer can insist you start your maternity leave and your leave and pay will start the day after your first day of pregnancy-related absence. If you give birth before you start maternity leave, your leave and pay will start the day after the birth.

If your baby is due on or after 1 April 2007 , the start of the maternity pay period has been brought into line with the start of maternity leave. SMP or MA will start on the same day as your maternity leave i.e. the day stated in your notice or, if applicable, the day after your first day of pregnancy-related absence or the day after the birth.

Note: In order to qualify for maternity leave, you should notify your employer as soon as reasonably practicable if you are absent for a pregnancy-related reason in the four weeks before your EWC or if you give birth.

Notice for maternity leave and pay

To get maternity leave you must give your employer notice in or before the 15 th week before your baby is due. If your employer asks you to, you must put it in writing. You must tell your employer that you are pregnant, your EWC, and the date you wish to start your OML, see the example letter below. You do not have to give separate notice for OML and AML, your employer should assume that you will take all the leave you are entitled to.

To get SMP you must give your employer your MATB1 form at least 28 days before you wish to start your pay. In practice many women give notice in writing for maternity leave and pay together by the 15 th week before the baby is due.

Once you have given notice your employer has 28 days to write to you confirming the date your maternity leave will end. If you are not entitled to SMP, you must also be given form SMP1.

Working during Maternity Leave

For babies due before 1 April 2007

If you work for the employer who is paying your SMP you will lose SMP for each week in which you do some work, even if it’s only for a day or part of a day.

If you do any work whilst you are receiving MA you will lose some of your MA. The amount of MA deducted should be reasonable with regard to the amount of work you do.

For babies due on or after 1 April 2007

You may work for up to 10 days without bringing your maternity leave to an end or losing your SMP or MA. This is to enable you to keep in touch during your leave if you wish to. You can work during ordinary or additional maternity leave but you cannot work during the two weeks of compulsory maternity leave immediately after the birth (four weeks for factory workers).

The keeping-in-touch days do not have to be consecutive. They can be used for any work-related activity including training, conferences or meetings. Working for part of a day will count as one day’s work. Your employers can also make reasonable contact with you during your leave, for example, to discuss your return to work. Any work during your maternity leave must be by agreement and neither you nor your employer can insist on it. Days of work will not extend your maternity leave period. You are protected from dismissal and detriment for refusing to work during maternity leave.

The new regulations on keeping-in-touch days do not say anything about how much an employee should be paid for working, so it will be a matter for agreement between you and your employer. The minimum that you must receive for the week in which the keeping-in-touch day falls is the SMP rate you are entitled to for that week. If your employer pays you any extra contractual pay your employer is entitled to offset it against any SMP paid for that week. When agreeing your rate of pay for Keeping-in-Touch days, your employer should make sure they comply with rules on the National Minimum Wage and equal pay.

Working for another employer

If you work for another employer (employer B) before the birth you can still get SMP from the employer (employer A) who is paying your SMP. If you work after the birth for employer B and you were not working for employer B in the 15 th week before your baby was due, your SMP from employer A will stop on the Saturday before you start work. However, if you worked for employer B in the 15 th week before your baby was due, you may work for employer B without affecting your SMP from employer A.

You can do self employed or voluntary work without any loss of SMP. During unpaid maternity leave, you can work for another employer unless there is a clause in your contract limiting any other work.

If you are dismissed.

If you are dismissed (including being made redundant) during pregnancy or maternity leave you must be given written reasons for the dismissal. It is automatically unfair and sex discrimination to dismiss a woman because of pregnancy, childbirth or maternity leave. This protection applies from day one of your employment. Normal unfair dismissal rules also apply once you have worked for your employer for a year.

If you are dismissed after the 15 th week before your baby is due you are still entitled to SMP in full from your employer.

If you are made redundant during maternity leave you have special protection, see our factsheet After Maternity Leave for more details.

On maternity leave and pregnant again

The fact that you are on maternity leave does not change your rights to further periods of maternity leave and pay. You continue to be an employee during your maternity leave and have continuous service. The normal rules for qualifying for maternity leave and pay for your next baby apply, however, you may not have earned enough (or anything) in the relevant calculation period to qualify for SMP. If you do not qualify for SMP for your next baby you may be able to claim MA.

Expected changes

The government intends to increase maternity pay to 52 weeks by 2010 and to introduce Additional Paternity Leave (APL) and Additional Statutory Paternity Pay which can be taken in the second six months of the child’s life. Some of the APL could be paid if the mother has returned to work and has some of her entitlement to SMP or MA left at the time of her return. Keep an eye on our website, www.workingfamilies.org.uk for updates.

Useful contacts

Working Families

1-3 Berry St, London, EC1V 0AA
Telephone: 0800 013 0313

Waving not drowning project for parents of disabled children: Janet on 020 7253 7243

www.workingfamilies.org.uk
info@workingfamilies.org.uk

Registered Charity No 1099808
Company No 4727690

Equal Opportunities Commission
offers advice and publications on sex discrimination and how to bring your case to an employment tribunal.
Advice line: 0845 601 5901
Email: info@eoc.org.uk or
visit the website at www.eoc.org.uk

Citizens Advice Bureau
You can find out where your nearest Citizens Advice Bureau is through the National Association of Citizens Advice Bureaux www.nacab.org.uk.

Advice from the CAB is available at www.adviceguide.org.uk

ACAS

Free employment law advice line.

Telephone: 0845 747 47 47
www.acas.org.uk

Community Legal Service (Directory)

For finding a solicitor or other adviser with the CLS quality mark in your area telephone: 0845 608 11 22

CLS Direct Advice Line: 0845 345 4 345
www.clsdirect.org.uk for advice and information on legal services in your area.

Employment Tribunal Enquiry Line

Telephone orderline for booklets on tribunal procedure and forms for making a tribunal claim: 0845 795 9775

www.employmenttribunals.gov.uk

Law Centres Federation

To find out if there is a free legal advice centre in your area

020 7387 8570

www.lawcentres.org.uk

Bar Pro Bono Unit

289-293 High Holborn, London, WC1V 7HZ

A small charity which may be able to provide free legal advice or representation. To apply for assistance telephone 020 7611 9500 for an application form.

www.barprobono.org.uk

The advice given in this factsheet is accurate at September 2006. It may not be accurate after that date.

Working Families operates a complaints procedure to ensure any complaints are dealt with thoroughly and fairly. If you would like to have details of the procedure or to make a complaint please contact the Chief Executive at Working Families.

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