Maternity rights and responsibilities
Employees and employers have rights and responsibilities to each other in respect of parental leave. The relevant law is in the Maternity and Parental Leave Regulations 1999 and the Work and Families Act 2006.
Notification before going on maternity leave
To claim maternity leave an employee should notify her employer no later than the end of the fifteenth week before the expected week of childbirth of:
the fact that she is pregnant
the expected week of childbirth
the date when she intends to start taking leave
An employer must notify the employee of the end date of her maternity leave within 28 days of receiving her notification.
The employee can change the date she starts her maternity leave as long as she gives 28 days' notice to her employer
The employee can give notice for her statutory maternity pay at the same time.
Although the law only requires the woman to tell her employer that she is pregnant and will take maternity leave by the end of the fifteenth week before the expected week of birth, she and her employer will both benefit if she shares the news as early as possible before then. This will mean that her employer knows that she is entitled to paid time off for antenatal care, and that particular health and safety and sex discrimination rules apply. It will also help the employer plan ahead and make arrangements for covering the period while the employee is away.
Her maternity leave can start no earlier than the beginning of the 11th week before the expected week of childbirth (although it could start automatically before then if she gives birth early).
If the employee is claiming maternity leave but not statutory maternity pay (SMP) she only needs to provide a maternity certificate if the employer requests it.
If an employee doesn't give her employer the required notification for the start of maternity leave she may lose her right to start maternity leave on her chosen date. Employers are only required to make exceptions to this where it was not reasonably practicable for the notice to have been given any earlier.
Time off for antenatal appointments
All pregnant employees are entitled to paid time off to attend antenatal appointments. Antenatal care may include relaxation and parent-craft classes (on the advice of a healthcare professional), as well as medical examinations related to the pregnancy.
The entitlement to paid time off for antenatal appointments applies regardless of the employee's length of service. With the exception of the first antenatal appointment the employee must show her employer on request:
a certificate confirming that she is pregnant. This can be provided by a registered medical practitioner (e.g. a doctor), a registered midwife or a registered health visitor, and;
an appointment card or some other document showing that an appointment has been made.
Payment during time off for antenatal appointments
The employee should be paid at her normal hourly rate of pay by her employer during the period of time off for antenatal care. This rate is calculated by dividing the amount of a week's pay by the number of the employee's normal working hours in a week. The normal working hours will usually be clear from the agreed terms and conditions of employment, or from the employee's written statement of main employment particulars.
If working hours vary from week to week, they should be averaged over the previous 12 complete working weeks. If the employee has yet to complete 12 weeks' service, the average should be estimated in the light of what could be reasonably expected from the agreed terms and conditions of employment and from the work pattern of any fellow employees in comparable jobs. Overtime is counted only if it is required and part of the normal working pattern.
Dismissal for asserting the right to time off for antenatal appointments
It is unlawful for an employer to dismiss an employee, to select her for redundancy in preference to other comparable employees or subject her to less favourable treatment, solely or mainly because she has sought to assert her statutory right to time off for antenatal care.
It does not matter for these purposes whether or not the employee does actually have the right and whether or not it has actually been infringed, as long as she acts in good faith in seeking to assert it. In addition, dismissal or selection for redundancy in these circumstances is likely to be unlawful under the provisions which protect women against dismissal on grounds of pregnancy or childbirth.
All pregnant employees are entitled to take up to one year's (52 weeks) maternity leave, regardless of length of service with the employer. Maternity Leave and Pay are separate entitlements.
Employment status during Ordinary Maternity Leave
The contract of employment continues throughout the 26 weeks of Ordinary Maternity Leave, unless either the employer or employee expressly ends it or it expires.
It is unlawful to select a woman for redundancy or terminate her contract solely or principally because she is pregnant or on maternity leave. It counts as unfair dismissal. Additionally, any redundancy must follow the correct procedures.
During Ordinary Maternity Leave an employee has a statutory right to continue to benefit from the terms and conditions of employment which would have applied to her had she been at work instead of on leave except for the terms providing for her wages or salary. Whether a bonus is payable to an employee on maternity leave depends on the type of bonus and the terms of the particular bonus scheme.
Examples of contractual terms and conditions that will continue to apply during Ordinary Maternity Leave might include, for example:
participation in share schemes
reimbursement of professional subscriptions
the use of a company car or mobile phone (unless provided for business use only)
other benefits such as health club membership
However, if the employee does any of the limited amount of work allowed during maternity leave she should receive contractual pay, the detail depending on the agreement she reaches with her employer over the amount and nature of the work.
Continuous employment status
During her Ordinary Maternity Leave period a woman continues to be employed. This means that this period counts towards her period of continuous employment for the purposes of entitlement to other statutory employment rights (for example, the right to a redundancy payment).
It also counts for assessing seniority, pension rights, and other personal length-of-service payments, such as pay increments under her contract of employment.
Return to work before, or at the end of, Ordinary Maternity Leave
When a woman returns to work from Ordinary Maternity Leave she has a right to return to the same job on the same terms and conditions as before her leave began.
She is entitled to benefit from any general improvements to the rate of pay, or other terms and conditions, which may have been introduced for her grade or class of work while she was away, as if she hadn't been away. If a pay rise has been awarded during maternity leave, and, but for her absence she would have received it, her employer should have recalculated her SMP. More detailed advice is provided by DWP.
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.
The contract of employment continues throughout Additional Maternity Leave unless either party expressly ends it or it expires.
It is unlawful to select a woman for redundancy or terminate her contract solely or principally because she is pregnant or on maternity leave. Any redundancy must follow the correct procedures.
During Additional Maternity leave a woman does not have any statutory entitlement to receive contractual remuneration from her employer. However, if the employee does any of the limited amount of work allowed during maternity leave then it will be a matter for her and her employer to agree the contractual pay she will receive for that work.
Changing the start of maternity leave
Once a woman has notified her employer of the date she wishes to start her maternity leave, she can change this date as long as she notifies her employer of the new start date by whichever is the earlier of either 28 days before the date she originally intended to start her leave or 28 days before the new date she wants to start her leave.
But if it is not reasonably practicable for her to give this much notice (for example if the baby is born early and she has to start her leave straight away) then she does not have to. In these circumstances she should give her employer as much notice as possible. The notification should be in writing if the employer requests this.
Confirmation by the employer of the end date of leave
Once an employee has provided the necessary notice of the intended start date of her leave, her employer should in turn notify the employee of the date on which the leave will end. This will normally be 52 weeks (one year) from the start of maternity leave.
The employer should notify the employee of the end date within 28 days of the employee's notification, unless the employee has since changed the date her leave will start. In that case, the employer must notify her of the end date within 28 days of the start of her leave.
If an employee isn't properly notified by her employer of the date of the end of her maternity leave, and subsequently does not return to work on time, she may have protection against victimisation and dismissal for this reason. In addition, if the employee wishes to change her return dates, she may not be obliged to comply with the notice requirements if her employer has not told her when her leave should end.
The start of maternity leave
The maternity leave period normally starts on the date which the employee has notified to her employer as the date she intends it to start. There are some exceptions to this rule, as set out below:
Absence due to childbirth before the intended start date
If childbirth occurs before the date the employee has notified (or before she has notified any date) the maternity leave period starts automatically on the day after the date of the birth. This happens even if the birth takes place before the start of the 11th week before the birth was originally expected. In this circumstance the woman should give her employer notice - in writing if the employer requests it - of the date of the birth if it has already taken place, and the date the birth was originally expected. Evidence of the actual and expected dates of birth can be provided together on the maternity certificate (Mat B1) provided by the doctor or midwife.
Dismissal or resignation before the intended start date
If an employee resigns or is dismissed before the date she has notified, or before she has notified a date, she loses the right to maternity leave, but she will still be eligible for SMP if she is employed after the 15th week before the expected week of childbirth.
Notification of change of return to work dates while on maternity leave
Unless otherwise notified, the date on which an employee returns to work will normally be the first working day 52 weeks after her maternity leave began. This is because all employees are entitled to 26 weeks' Ordinary Maternity Leave and a further 26 weeks' Additional Maternity Leave.
Contact during maternity leave
During maternity leave: the employer may make contact with the employee (and vice-versa) while she's on maternity leave, as long as the amount and type of contact is not unreasonable, to discuss a range of issues - e.g. to discuss her plans for returning to work, or to keep her informed of important developments at the workplace. The employee should be informed of any relevant promotion opportunities or job vacancies that arise during maternity leave.
During the maternity leave period an employer may make reasonable contact with an employee, and in the same way an employee may make contact with her employer. The frequency and nature of the contact will depend on a number of factors, such as: the nature of the work and the employee's post, any agreement that the employer and employee might have reached before maternity leave began as to contact; and whether either party needs to communicate important information to the other, such as for example news of changes at the workplace that might affect the employee on her return.
The contact between employer and employee can be made in any way that best suits either or both of them. For example, it could be by telephone, by email, by letter, involving the employee making a visit to the workplace, or in other ways.
Employers should note that they must, in any event, keep the employee informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was working.
Employers and employees will often find it helpful, before maternity leave starts, to discuss arrangements for staying in touch with each other. This might include agreements on the way in which contact will happen, how often, and who will initiate the contact. It might also cover the reasons for making contact and the types of things that could be discussed.
What constitutes "reasonable" contact will vary according to the circumstances. Some women will be happy to stay in close touch with the workplace and will not mind frequent contact with the employer. Others, however, will prefer to keep such contact to a minimum.
Keeping in Touch days
Employees may, by agreement with their employer, do up to ten days' work - known as "Keeping in Touch days" - under their contract of employment during the maternity leave period. Such days are different to the reasonable contact that employers and employees may make with one another - described in the section above - as during Keeping in Touch days employees can actually carry out work for the employer, for which they will be paid.
If the work carried out during one shift straddles midnight it may be counted as one day for the purposes of Keeping in Touch days, if the employee's normal working pattern is such that this would fall within a normal working day.
Any work done on any day during the maternity pay or maternity leave period will count as a whole keeping in Touch day, up to the 10-day maximum. In other words, if an employee comes in for a one-hour training session and does no other work that day, she will have used one of her Keeping in Touch days.
The type of work that the employee undertakes on Keeping in Touch days is a matter for agreement between the two parties. They may be used for any activity which would ordinarily be classed as work under the woman's contract, for which she would be paid, but could be particularly useful in enabling a woman to attend a conference, undertake a training activity or attend for a team meeting for example.
When Keeping in Touch days may be worked
Up to ten days' work under the employee's contract of employment may be undertaken at any stage during the maternity leave period, by agreement with the employer, apart from during the first two weeks after the baby is born (or during the first four weeks if the employee works in a factory).
Payment for Keeping in Touch days
Because Keeping in Touch days allow work to be done under the employee's contract of employment, the employee is entitled to be paid for that work. The rate of pay is a matter for agreement with the employer, and may be as set out in the employment contract or as agreed on a case-by-case basis. However, the employer will need to bear in mind their statutory obligations about paying staff, such as ensuring they pay at least the National Minimum Wage and their responsibilities to ensure women and men receive equal pay for work of equal value.
Statutory Maternity Pay (SMP) and Keeping in Touch days
If the employee is receiving statutory maternity pay, the employer should continue to pay her SMP for the week in which any Keeping in Touch work is done by the employee. The employer will be able to reclaim reimbursement for some or all of this money in the normal way from HMRC as before.
If the employee is receiving SMP the employer may count the amount of SMP for the week in which the work is done towards the contractual pay agreed by the two parties. However, it will always be possible to agree an amount of contractual remuneration over and above the weekly SMP rate to reflect the work the woman has done. This is something that both parties need to agree between themselves before any work is done. Whatever amount of money is paid by the employer in respect of Keeping in Touch days, the employer will continue to be able to recover funding from HMRC, for the SMP paid, as normal.
Further advice on statutory maternity pay during Keeping in Touch days is provided by DWP. Jobcentre Plus provides advice for women who are receiving Maternity Allowance.
Returning to work
If she returns at the end of her full 52 weeks of maternity leave and has not told her employer that she wishes to come back at any other time, she does not need to provide any further notice.
The employee can change the dates of her return to work as long as she gives eight weeks' notice to her employer.
If the employee decides not to return to work at the end of her maternity leave she is entitled to continue to receive her full amount of statutory maternity leave and pay. She must give the employer at least the notice required by her contract or, where there is none, the statutory notice.
An employee who returns to work after Ordinary Maternity Leave is entitled to return to the same job on the same terms and conditions as if she had not been absent, unless a redundancy situation has arisen.
An employee who returns to work after Additional Maternity Leave is also normally entitled to return to the same job on the same terms and conditions as if she had not been absent, unless a redundancy situation has arisen (see Maternity Leave). However, if there is a reason other than redundancy which means that it is not reasonably practicable for her employer to take her back to the same job, she is entitled to be offered suitable alternative work.
Employees who have children aged under six (or disabled children under 18) have the right to request flexible working and their employers have a duty to seriously consider that request.
An employee who is dismissed during or at the end of maternity leave, or after she resumes work, on the grounds that she took maternity leave may make a claim for unfair dismissal through an employment tribunal.
Return to work before the end of maternity leave
If the employee wishes to return to work before the end of her full maternity leave period (this will normally be the end date the employer confirmed to her before she went on leave), she must give her employer eight weeks' notice of her return to work. This notice requirement applies during both ordinary and additional maternity leave. The notice period is the minimum the employer is entitled to expect, but the employer can of course accept less or no notice at their discretion.
If the employee attempts to return to work earlier than the end of her maternity leave without giving her employer eight weeks' notice, the employer may postpone her return until the full eight weeks' notice has been given. However, the employer may not postpone her return to a date later than the end of her maternity leave period.
An employee whose return has been postponed under these circumstances is not entitled to receive wages or salary if she returns to work during the period of postponement. However, if the employer didn't provide appropriate notification of when her leave should end (see above) the employee is not obliged to give the eight weeks' notice.
For example, if an employee was due to return to work after 52 weeks' maternity leave on 1 August, but then decided to return to work after 39 weeks of leave (that is, on 9 May) she would need to give her employer eight weeks' notice of the new date (that is, by 14 March).
Returning to work later than previously notified
An employee who has notified her employer that she wishes to return to work before the end of her maternity leave, as set out in the paragraphs above, is entitled to change her mind. However, in these circumstances she should give her employer notice of this new, later, date of return at least eight weeks before the earlier date.
For example, if, having started her maternity leave, an employee decides that she does not wish to take her full entitlement of 52 weeks and gives her employer notice that she will return after six months (for example, on 1 October) she can still change her mind and tell her employer that she will take a longer period away - up to the full year of maternity leave - as long as she gives eight weeks' notice before the earlier date (in this case, eight weeks before 1 October - i.e. 6th August).
Employees who do not wish to return to work after maternity leave
An employee who does not wish to return to work after her maternity leave must give her employer the notice of termination required by her contract of employment. However, it will usually help her employer if she can give as much notice as possible. As long as she specifies the date on which she wishes to terminate the contract (this could be the first day she was due back at work after maternity leave) this will not, of itself, mean that she is no longer entitled to maternity leave or pay for the rest of the maternity leave period. The Government therefore encourages women who do not wish to return to work after their maternity leave to give their employers as much notice as possible, pointing out that doing so will not automatically end their leave or pay.
Further information and useful documents
Next, you may wish to read about paternity rights.
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