What is Maternity Leave? How long is it? How do you qualify for it?
How long is maternity leave?
All employees are entitled to 52 weeks maternity leave, regardless of length of service or the number of hours worked. Your maternity leave is divided into 26 weeks Ordinary Maternity leave (OML) and 26 weeks Additional Maternity Leave (AML). Your employment contract continues while you are on maternity leave and you can continue to benefit from some of your rights under your contract. You have the right to return to your job after your maternity leave.
Your employer should assume that you wish to take 52 weeks of maternity leave, unless you give notice otherwise. To change your return date you must give eight weeks notice before the original return date or the new return date, whichever is sooner. You can change your return date more than once (as long as you give enough notice). You are not allowed to work for two weeks after childbirth (or four weeks if you work in a factory) as this period is Compulsory Maternity Leave. There is a sample letter changing the return date that you can use. If you meet the qualifying conditions you and/or your partner may be able to share up to 50 of the 52 weeks’ leave to which you would be entitled to as maternity leave. This is known as Shared Parental Leave .
What will I get paid during maternity leave?
Many women will get maternity pay. There are two types of maternity pay – Statutory Maternity Pay (SMP) and Maternity Allowance (MA). Both are paid for a total of 39 weeks. If you qualify for maternity leave, the last 13 weeks are unpaid. You should check in each job you have to see if you are entitled to any contractual maternity pay, then check to see if you are entitled to Statutory Maternity Pay. If you are not entitled to Statutory Maternity Pay, you may be entitled to Maternity Allowance, and if you are not entitled to Maternity Allowance either you might be able to claim Employment and Support Allowance.
Always check your contract of employment as it may offer you better rights than the legal minimum, for instance you may be entitled to occupational maternity pay. Your contract can offer you better, but not worse rights, than those described in this information.
I am on a fixed term or temporary contract. Can I still go on maternity leave?
Generally speaking, a temporary or fixed term contract has no special status in law, and if you are an employee, you will have all the rights of a permanent employee. In fact, it is unlawful to treat fixed term workers less favourably than permanent workers. You have all the maternity and health and safety rights of ordinary employees.
If you are on a fixed term contract which is not renewed, it is still a dismissal under law, and has the potential to be an unfair dismissal, depending on the circumstances.
If your contract ends and is not renewed, you need to look at the reasons why. If there is no longer a need for you to do the work, for example because the project has ended, you are redundant, and if you have two years’ continuous service with the employer you will be entitled to a redundancy payment. If this happens while you are on maternity leave, you have some special rights.
If the job still exists, and your contract is not renewed because of your pregnancy or maternity leave, the dismissal will be discriminatory and automatically unfair. A woman who is dismissed while pregnant must be given written reasons for her dismissal.
It is automatically unfair to dismiss a woman because she is pregnant or intends to take maternity leave even if this means that she is unable to work for the majority of the contract, whether because of maternity leave or because of health and safety reasons.
When can I start maternity leave?
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. You should give your employer notice of when you intend to start your leave in the 15th week before the week the baby is due. There is a sample letter for notice here. Your leave will start on the day stated in your notice.
If you are off work with a pregnancy-related absence (this could include a health and safety suspension or pregnancy-related sickness) in the four weeks before the week the baby is due, your employer can insist that you begin your maternity leave. This is the only circumstance where your employer has any say into when your maternity leave starts.
If you give birth before you start maternity leave, your leave and pay will start the day after the birth. Statutory Maternity Pay (SMP) or Maternity Allowance (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: 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 before you start your maternity leave.
I am an Agency Worker, can I go on maternity leave?
Most but not all agency workers are considered in law to be workers. However, some agency workers are in fact employees of either the agency or the company they are placed with. This includes agency workers who are employed by an agency under a Swedish Derogation contract, see below. If you are not sure whether you are an employee or a worker, visit our information on our web pages
Agency workers do not have the right to maternity leave in that they have no right to return to the same job after they have taken time away from work to have a baby. However, you may still be entitled to Statutory Maternity Pay provided you met the usual conditions for Statutory Maternity Pay (SMP) . If you do not qualify for SMP, you may be entitled to Maternity Allowance.
Because you have no right to maternity leave does not mean you cannot have the time off! If you are an agency worker, you are under no obligation to take work from the agency so you can take as much time off as you like. When you are ready to return to work, you are in the same position as any other agency worker asking the agency to find work for them. However, you must not be refused work because you have been pregnant/away due to a birth as that would be discrimination. If you believe your agency is not offering you as much work (either once you have told them you are pregnant or when you return to work), you should make a note of the hours you were previously given, be clear in the information you provide them about your availability for work, make a record of the work you are given and seek more advice if work is not forthcoming. If you are in a trade union, they may be able to offer you assistance.
If you are an agency worker on a Swedish derogation contract
A Swedish derogation contract (also called a Pay between assignments contract) is a special type of employment contract. If you are on one of these contracts, you are counted as an employee of the agency and there are special rules about your pay. Because you are treated as an employee, you are entitled to maternity leave. If you’re on a pay between assignments contract, the agency will pay you if your job ends and you have to wait before starting a new one. There is more information about Swedish derogation contracts for agency workers on the ACAS website.
I am self-employed, do I get maternity leave or pay?
If you are a self employed woman running her own business, and are genuinely your own boss, you will not need to think about many of the maternity rights. However, you may need to employ maternity leave cover to keep the business running while you are absent, and you may have worries about money. You may be able to claim Maternity Allowance if you meet certain criteria. Working Families cannot advise you on employing someone, or about running a business. If you own a limited company and pay yourself a salary through PAYE from the company, you could qualify for SMP as an employee, provided you meet the usual test. Call the HMRC employer’s helpline on 0300 200 3200. You will find more information on this here.
If you work for other companies as a self-employed contractor, you are not entitled to maternity leave, meaning you have no right to return to your job after your absence. However you are still protected by sex discrimination law, and if you are not being offered work because you have taken time off to have a child, you may have a sex discrimination claim.
This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details