Outlook video: Employees' maternity rights
XpertHR's head of content Jo Stubbs and senior employment law editor Clio Springer discuss employees' rights to statutory maternity leave and pay.
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The questions in full:
Does an employee have to have worked for her employer for a minimum period of time to qualify for statutory maternity leave?
No. Regardless of her length of service, a pregnant employee is entitled to take 26 weeks' ordinary maternity leave followed immediately by 26 weeks' additional maternity leave. This is regardless of whether she's full or part time, and whether she's employed on a permanent or a fixed-term contract.
So that's a full year off work on maternity leave. And is she entitled to statutory maternity pay throughout this time?
Statutory maternity pay is payable for 39 weeks. The first six weeks is paid at 90% of the employee's average weekly earnings, and the remaining 33 weeks at the standard rate, which is currently £128.73 - although, if 90% of her average weekly earnings is less than the standard rate, she'll be paid at 90% of her average weekly earnings for the full 39-week period.
However, to qualify for statutory maternity pay, the employee must have been continuously employed for 26 weeks ending with the 15th week before the expected week of childbirth, and have average weekly earnings of at least the lower earnings limit for national insurance contributions, currently £102.
How soon before her baby is due can the employee start her maternity leave?
Under normal circumstances, the earliest she can begin her maternity leave is the 11th week before her expected week of childbirth. The exception is where the baby is born prematurely before this date, when her maternity leave will start on the day after she gives birth.
So when does she have to let her employer know what her plans are?
By the end of the 15th week before her expected week of childbirth she has to let her employer know that she's pregnant, her expected week of childbirth and the date she intends to start her maternity leave. If the employer so requests, she has to provide the notification of her intended maternity leave start date in writing. The employer can also ask to see the employee's Mat B1, the certificate stating the expected week of childbirth.
And is the employer required to do anything when it receives the employee's notification of her maternity leave plans?
Yes. It has to respond in writing within the next 28 days, setting out the date on which the employee's additional maternity leave will end. It's important that it does this – if it doesn't, this will undermine the employer's ability to prevent the employee returning to work before the end of her maternity leave without giving proper notice, or to discipline her for failing to return to work when she's supposed to.
Can the employee change her mind about her maternity leave start date?
Yes. So long as she gives notice at least 28 days before the earlier of the new maternity leave start date and the original intended maternity leave start day or, if that is not reasonably practicable, notifies the employer as soon as reasonably practicable.
So the employee has to give notice of when she intends to start her maternity leave, but does she also have to say formally whether or not she intends to take her full year of maternity leave?
No. The employer should assume she will take her full 52 weeks' maternity leave. If that's what she plans to do, she is entitled simply to return to work on the first working day after her maternity leave ends. If, however, she intends to return to work before the end of her 52-week maternity leave period, she's required to give the employer eight weeks' notice.
Surely the employer has a statutory right to know if she plans to return to work at all after her maternity leave?
No. The employer has no statutory right to request formal confirmation that the employee will be returning to work at the end of her maternity leave. There's nothing to prevent the employer making informal enquiries - although it should ensure that these are polite and non-threatening, and certainly not repetitive - but the employee is under no obligation to respond. If she decides that she will not be returning to work after maternity leave, she must give the employer the notice set out in her contract of employment.
Will the employee continue to accrue annual leave during her maternity leave?
Yes. Entitlement to the 5.6 weeks' statutory annual holiday continues to accrue during both ordinary and additional maternity leave. Any contractual holiday in excess of this also continues to accrue, as employees are entitled to benefit from all of their contractual terms and conditions - with the exception of remuneration throughout both ordinary and additional maternity leave.
And finally, suppose the employee resigns or is made redundant before she starts her maternity leave is she still entitled to be paid statutory maternity pay?
As long as the employee meets the qualifying conditions for statutory maternity pay and is still employed for at least the first day of the qualifying week the 15th week before the baby is due she will be entitled to receive her full statutory maternity pay.
HR & Compliance Centre Liveflo
Maternity leave and pay flowchart The flowchart guides employers step by step through the maternity process, from being informed informally that an employee is pregnant, to her return to work after maternity leave, providing the letters and calculators needed each step of the way.
Maternity calculators The maternity leave and pay calculators included in the Maternity leave and pay flowchart include a calculator to give the employee an indication of by when she must provide her official maternity notification, and the earliest she can start her maternity leave, and one to work out the end date of her additional maternity leave.
Maternity leave and pay: FAQs
We provide the answers to employers' questions on maternity leave and pay, including:
- Where an employee is expecting twins, will she be entitled to two lots of maternity leave?
- Where a pregnant employee's job involves heavy lifting and there is no lighter work available for her to do can the employer insist that she start her maternity leave early?
- Where an employee has been absent on maternity leave must she return to work for a particular period of time before qualifying for another period of maternity leave?
- If a part-time employee temporarily increases her hours for a period prior to her maternity leave, on what basis should her maternity pay be calculated?
- If an employer dismisses a pregnant woman for gross misconduct must it still pay her maternity pay?
- Will a surrogate mother be entitled to paid maternity leave?
- Where an employee who lives in employer-provided accommodation becomes pregnant must the employer permit her to continue to live there after the birth?
- Does an employee made redundant while on maternity leave have any special rights?
- Are the 10 keeping-in-touch days during maternity, adoption and additional paternity leave pro-rated for part-time employees?
- If an employee does not return from maternity leave, does the employer have to pay her in lieu of the annual leave that she accrued during maternity leave?
For the full range of FAQs on maternity leave and pay, visit the HR & Compliance Centre FAQS section.
Maternity leave and pay : practical guidance
The HR & Compliance Centre "how to" section provides practical guidance on maternity leave and pay, including:
- How to deal with the holiday entitlement of a woman taking maternity leave
- How to take disciplinary action against an employee during pregnancy or maternity
- How to deal with employees on fixed-term contracts who are pregnant or on maternity leave
- How to deal with pregnant employees and those on maternity leave in a redundancy situation
- How to deal with an employee who is undergoing IVF treatment
To view all the practical guidance on maternity leave and pay, visit the HR & Compliance Centre "how to" section.