Legislation relating to Maternity requires employers to:
- Provide time off for ante natal care;
- Provide maternity leave;
- Provide maternity benefits.
The legislation also provides women with:
- Protection against unfair dismissal;
- Protection in respect of the health and safety issues which maybe affected by pregnancy;
- Protection from sex discrimination, including dismissal on grounds of sex and marital status;
- The right to ask her employer to consider a request to return to work on a flexible basis at the end of her maternity leave.
- Employees are entitled to 26 weeks Ordinary Maternity Leave and 26 weeks Additional Maternity Leave, regardless of length of service (i.e. 52 weeks in total);
- Provided the mother has worked for her employer for 26 weeks into the 15th week before she is due to give birth and earns above the National Insurance Lower Earnings Limit (currently £118.00 per week) she is entitled to Statutory Maternity Pay ("SMP");
- Regardless of any Company Maternity Pay, her SMP entitlement will be the basic rate of 90% of normal earnings (which is based on average earnings during the previous eight weeks) or the current rate of SMP (currently £148.68 per week) whichever is the higher during the first 6 weeks followed by the current rate of SMP (or 90% of the average weekly earnings if this is less than the current rate of SMP) for the remaining 33 weeks of the 39 week Maternity Pay period;
- If the employee does not qualify for SMP, she may claim Maternity Allowance from the Benefits Agency. Maternity Allowance is paid at the flat rate of SMP for 39 weeks;
- In the event that the employee does not return to work having received Company Maternity Pay, the company can re-claim any non-statutory amounts paid to her in excess of her entitlement to SMP, provided that this is made clear within the Company's maternity leave policy.
A pregnant employee will be required to notify her employer of her intention to take Maternity Leave by the 15th week before the expected week of childbirth unless this is not reasonably practicable. The employee must communicate to her employer that she is pregnant, the expected week of childbirth, and when she wishes her maternity leave to start. The earliest that this leave can be taken is 11 weeks before the expected week of childbirth, unless the baby is born early. In the event that the child is born early, maternity leave starts the day after the day of the birth. In these circumstances the employee must provide her employer with the child’s birth certificate or a document signed by a doctor or midwife that confirms the actual date of birth and the employer must write to her to confirm the new end date for her leave.
She should at this time provide her employer with her MATB1 form (which she should have obtained from her doctor or midwife). An employee is allowed to change her mind as to when she wishes to start Maternity Leave, provided she informs her employer at least 28 days in advance.
Employers must provide the employee with a notification of her maternity leave entitlement, maternity pay entitlement and the date upon which her maternity leave will end (based on the intended commencement date) within four weeks of being informed of the employee's intention to take maternity leave. The employee must also give 28 days notice of the date which she wishes SMP payments to commence (which can start on any day of the week; in the past it had to fall on a Sunday but this is no longer the case).
If the employee wishes to return to work before the end of her maternity leave she must give her employer 8 weeks notice of her intent to return early.
During the employee's ordinary maternity leave, she is entitled to all normal benefits she would normally be entitled to from her terms and conditions of employment (except for her salary). The employee has the right at the end of her Ordinary Maternity Leave to return to her original job. If her job becomes redundant, while she is on Maternity Leave, a suitable alternative job must be offered if one arises. If, however, the employer can offer no suitable alternative the employee is entitled to redundancy pay. Failure to accept a reasonable offer of alternative employment could result in the employee losing her right to redundancy pay.
Additional Maternity Leave
- Some contractual terms and conditions continue throughout the Additional Maternity Leave period - these include the right to notice and redundancy pay and the right to raise a grievance. However, benefits such as holiday entitlement do not continue to accrue during this period;
- Employees (at the end of Additional Maternity Leave) are entitled to return to their original jobs. If this isn't reasonably practicable, the employer should endeavour to find a suitable alternative. If there is no suitable alternative position available, then redundancy should be offered.
Employers must take their employee's health & safety into account and any risk that the employee may face. If there is a risk to the mother and/or her unborn baby, it is the employer's responsibility to offer alternative employment which does not pose any risk. If this is not reasonably practicable then the employer must suspend the employee, because of the potential risk to health, on full pay.
Holidays continue to accrue during both Ordinary Maternity Leave and Additional Maternity Leave. Holiday may not be taken during Maternity Leave and payment in lieu of accrued but untaken holiday can not be made for statutory holiday entitlement under the Working Time Regulations. Employers may wish to agree payments in lieu for any additional contractual holiday entitlement in excess of the employee's statutory entitlement. Typically holiday may be taken either immediately prior to the commencement of Maternity Leave or immediately at the end of the Additionalk Maternity Leave period.
'Keeping in touch days'
Employees may, with their employer's agreement, attend work for up to 10 days during their Maternity Leave without bringing the leave to an end. These days are intended to encourage the employee to keep in touch with the workplace. Payment should be made for attendace at work although this should not necessarily be at the employees normal contractual rate of pay (but must be in line with the requirements of the National Minimum Wage). Employers are under no obligation to provide work on these days and the employee is under no obligation to perform work on these days - which may be used for such activities as training or briefing the employee on developments within the business or her team.