Maternity leave and pay: employers' questions

We answer some frequently asked questions on employees' maternity rights.

No. A woman will be entitled to another period of maternity leave, even if she becomes pregnant again while on maternity leave. Depending on when the second baby is due, this could mean that she returns to work for a short period of time before starting her second period of maternity leave. However, she might not have to return to work at all. This is more likely to be the case if she extends her absence by taking a period of parental leave that follows immediately after her maternity leave or has some accrued holiday to use up.

The employee will not necessarily be entitled to statutory maternity pay (SMP) during the second period of maternity leave. This is because, in order to qualify for SMP, her average weekly earnings during the eight weeks up to and including the qualifying week must be no less than the lower earnings limit for national insurance contributions, which is currently £84 per week. The qualifying week is the 15th week before the expected week of childbirth.

In order to be eligible to receive SMP a woman must have been continuously employed for 26 weeks prior to the qualifying week, and her average weekly earnings over the period of eight weeks ending with the qualifying week must not be less than the lower earnings limit for national insurance purposes. She must also have reached, or have been confined before reaching, the 11th week before the expected week of childbirth. Confinement refers to the birth of a child, whether living or dead, after 24 weeks of pregnancy. A woman who suffers a miscarriage before the end of the 24th week of pregnancy and is absent from work will not be absent due to confinement and therefore will not be eligible to receive SMP. However, if a woman has a stillbirth after 24 weeks of pregnancy, SMP will be payable.

An employee who satisfies the other qualifying criteria for SMP will still be entitled to receive it if she leaves work after the start of the qualifying week for any reason including because she has resigned.

An employee is obliged to give notification of the date on which she wishes her maternity leave to start no later than the end of the 15th week before the week her baby is due. If it is not reasonably practicable for her to give notification at this time, she must do so as soon as it is reasonably practicable. The employee may subsequently change her mind about the start date, but she must give her employer at least 28 days' notice of the revised start date, whether this is earlier or later than the date originally notified. It follows that if the baby is late, there will be no possibility for her to give the requisite 28 days' notice of a revised start date for her maternity leave to begin. The employee will therefore be duty bound to start her maternity leave on the date officially notified to the employer, ie the date the baby was due, even if it subsequently turns out that the baby is a late arrival.

Entitlement to SMP and the amount payable during the first six weeks of maternity leave (the higher rate) are calculated in accordance with the employee's average weekly earnings during the eight weeks that immediately precede the 14th week before her expected week of childbirth. It is the employee's actual earnings during this eight-week calculation period that are used to work out entitlement to SMP. Thus an employee may gain or lose, depending on the circumstances. For example, if an annual bonus was paid during those eight weeks, this will have to be taken into account when calculating the amount of higher-rate SMP due to the employee. Similarly, if the employee's pay was reduced owing to the fact that she was absent from work because of sickness, the amount of higher-rate SMP due will be reduced accordingly.

An employee on maternity leave who does not intend to return to work is still required to give notice to terminate her contract of employment. She must give whichever is the greater of her contractual notice or statutory minimum notice. In accordance with s.86(2) of the Employment Rights Act 1996, the statutory minimum notice period on resignation is not less than one week, but the employee's contract of employment may provide for a greater notice period to be given, for example one month. Notice should be given so that it expires not later than the day before the employee's due date of return from maternity leave, regardless of whether she qualifies for only ordinary maternity leave or both ordinary and additional leave. During ordinary maternity leave, an employee is still bound by all of the obligations arising under her contract of employment. During additional maternity leave, an employee is bound by, among other provisions, the terms and conditions of employment relating to notice of termination of the employment contract by her (reg. 17(b)(i) of the Maternity and Parental Leave etc Regulations 1999).

If the woman returns after ordinary maternity leave, she has the right to return to the job she occupied before her maternity leave. If she has taken additional maternity leave, she has the right to return to her original job unless this is not reasonably practicable, in which case she has the right to be offered suitable alternative employment on terms no less favourable than the terms she enjoyed in her original job.