The article explains the rights of pregnant employees and their employers and their responsibilities to each other under the Work and Families Act 2006 and the Maternity and Parental Leave Regulations 1999.
Types of maternity pay
What type and how much pay you receive will depend on your circumstances. You will usually either claim:
statutory or contractual maternity pay from your employer
Maternity Allowance through Jobcentre Plus (or a Jobs and Benefits office in Northern Ireland)
Contractual maternity pay
Your employer might have its own maternity pay scheme. Check your employment contract or staff handbook, or ask your employer's HR department. Such schemes sometimes require you to pay back some money if you don't return to work. Of course, you must be paid at least as much as the statutory amount (if you qualify), which doesn't have to be repaid.
Statutory Maternity Pay
The rates of Statutory Maternity Pay (SMP) and Maternity Allowance are subject to revision by the Department for Work and Pensions each April.
Employees who meet qualifying conditions based on length of service and average earnings, and who give the correct notice are entitled to receive from their employers up to 39 weeks’ SMP.
The rate of SMP is 90% of an employee's average weekly earnings for the first six weeks. For the remaining 33 weeks, she will either receive 90% of her average weekly earnings (as in the first 6 weeks), or a flat rate, whichever is less. The flat rate is subject to review every April.
Women who are not entitled to SMP but meet qualifying conditions based on their recent employment and earnings records may claim up to 39 weeks’ Maternity Allowance from their JobCentre Plus office.
Women may, by agreement with their employer, undertake up to 10 days’ work under their contract of employment without losing any right to SMP or MA.
Do I qualify for Statutory Maternity Pay?
To qualify for SMP you must have been:
employed by the same employer without a break for at least 26 weeks into the 15th week before the week your baby is due
earning a minimum average amount each week before tax
If you are not entitled to Statutory Maternity Pay, you may qualify for Maternity Allowance instead.
If you don't qualify either, you may be able to receive Incapacity Benefit or a grant instead if you or your partner claims benefits or tax credits.
If you are not eligible to receive SMP, you may still qualify for Maternity Allowance (MA) if you:
are employed
are self-employed and pay Class 2 National Insurance contributions, or have a Small Earnings Exception certificate
If you are not employed but have worked close to or during your pregnancy, then you may be able to receive MA if you:
worked (either on an employed or self employed basis) for at least 26 of the 66 weeks before the week your baby was due (a part week counts as a full week)
earned more than a certain amount over any 13 of those 66 weeks
You receive either the standard rate of maternity allowance, or 90 per cent of your average weekly earnings, whichever is less. MA is not liable to income tax or NI contributions.
What are the statutory maternity leave and pay entitlements and responsibilities?
All pregnant employees are entitled to 52 weeks’ maternity leave (26 weeks’ Ordinary Maternity Leave and 26 weeks’ Additional Maternity Leave).
Provided you meet certain notification requirements, you can take this no matter how long you've been with your employer, how many hours you work or how much you're paid.
All pregnant employees are entitled to paid time off for antenatal care
Employers may make reasonable contact with a woman on maternity leave for a number of reasons, such as to discuss arrangements for her return to work.
Employees may undertake up to ten ‘Keeping in Touch Days’ during their maternity leave – allowing work under their contract of employment – by agreement with the employer.
The law requires that an employee take a minimum of two weeks’ (four weeks for those who work in factories) maternity leave immediately following the birth. Additional Maternity Leave follows Ordinary Maternity Leave and there must be no gap between the two.
A woman can choose when to start her maternity leave. This can usually be any date from the beginning of the 11th week before the week the baby is due. The woman must give the correct notice to her employer.
Employees may also have a right to parental leave, time off for dependants, the right to request flexible working, and the father of the baby may also have a right to paid paternity leave.
Ordinary Maternity Leave
Ordinary Maternity Leave lasts for 26 weeks and may begin at a time of the woman’s choosing, any time from 11 weeks before the expected week of birth up until the birth itself.
If the employee is absent from work due to a pregnancy-related reason after the beginning of the fourth week before the expected week of childbirth, but before the date she has notified, the maternity leave period begins automatically on the day after the first day of her absence.
Additional Maternity Leave
Additional Maternity Leave lasts for 26 weeks and, if taken, must follow immediately after Ordinary Maternity Leave. There cannot be a gap between the two types of maternity leave.
Return to work
Employees who wish to return to work either earlier or later than agreed with the employer should provide eight weeks’ notice, unless the employer agrees to less notice being given.
Employees have a right to return to the same job after maternity leave. There may be some exceptions to this if the employee takes more than 26 weeks’ maternity leave and if it is not reasonably practicable for the employer to hold her job open, but she must still be offered a job that is suitable for her and the terms and conditions must be no less favourable.
Further information
You may want to read further about an employee's rights and responsibilities during pregnancy.