STATUTORY MATERNITY PAY (SMP)
All pregnant employees are entitled to paid time off for antenatal careAll pregnant employees are entitled to 52 weeks' maternity leave (26 weeks' Ordinary Maternity Leave and 26 weeks' Additional Maternity Leave)
Pregnant employees who meet qualifying conditions based on their length of service and average earnings are entitled to up to 39 weeks' Statutory Maternity Pay (SMP), which is paid by their employers and mostly or completely refunded by the Government
Women who are not entitled to SMP but meet qualifying conditions based on their recent employment and earnings may claim up to 39 weeks' Maternity Allowance, paid direct by Jobcentre Plus
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
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.
Pregnant employees and those on maternity leave are protected under sex discrimination legislation which outlaws unfair treatment, including dismissal, on grounds of their sex, pregnancy or maternity leave.
Employers are by law required to protect the health and safety of employees who are pregnant, have recently given birth, or who are breast-feeding
Who the rights apply to
Most of the rights and responsibilities, apart from the right to Maternity Allowance, described in this guidance apply only to employees and not to the self-employed or to the unemployed (see more information on employment status).
As a general rule, the following principles apply:
- It is sex discrimination to treat a woman unfairly because of her pregnancy or maternity leave. This applies regardless of her employment status;
- To qualify for maternity leave a woman must be an employee (that is, work under a contract of employment);
- To qualify for Statutory Maternity Pay a woman must be an employee or an employed earner (that is, must work for someone who is liable to pay the employer's share of her Class 1 National Insurance Contributions (in case of doubt contact your local HMRC office;
- To qualify for Maternity Allowance a woman must be - or recently have been - either an employed or self-employed earner;
- The vast majority of women who qualify for leave will also qualify for pay, and vice-versa. There are, however, a few exceptions which are indicated in the text where relevant;
- The rights relating to time off for antenatal care and to maternity leave do not apply to office holders, such as members of the police force, MPs, the judiciary and some company directors, or to masters or crew members engaged in share fishing paid solely by a share of the catch;
- Employees on fixed-term contracts may not be treated less favourably than similar permanent employees
All the rights described in this guidance apply to both full-time and to part-time employees, no matter how many hours they work, provided that they satisfy the appropriate qualifying conditions, such as length of service.
Childbirth, Expected week of childbirth, week of childbirth
In this guidance "childbirth" means the live birth of a child, or a still birth after a pregnancy lasting at least 24 weeks. "Expected week of childbirth" refers to the week, beginning with midnight between Saturday and Sunday, during which it is expected that the baby will be born. "Week of childbirth" means the week, beginning with midnight between Saturday and Sunday, during which the child is actually born.
Associated Employer
In this guidance two employers are "associated employers" if one is a company which the other directly or indirectly controls, or both are companies which are controlled by a third person.
Women who work for more than one employer
Women who work for more than one employer will be able to exercise their maternity entitlements - and will be subject to obligations - separately in relation to each. Employees should be careful to follow the notification for the start of maternity leave, and notification for any change in return to work dates, for each employer.
Time off for antenatal appointments
All pregnant employees are entitled to time off to keep appointments for antenatal care made on the advice of a registered medical practitioner, registered midwife or registered health visitor.
Antenatal care is not restricted to medical examinations. It could, for example, include relaxation classes and parentcraft classes as long as these are advised by a registered medical practitioner, registered midwife or registered health visitor.
The employer is entitled to ask for evidence of antenatal appointments, except in the case of the very first appointment.
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 (eg 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
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.
Statutory Maternity Pay and Maternity Allowance
Pregnant employees who meet qualifying conditions based on their length of service and average earnings and give the correct notice are entitled to receive from their employers up to 39 weeks' Statutory Maternity Pay (SMP).
Employers who are liable to pay SMP may reclaim 92% of the amount they pay from Her Majesty's Revenue and Customs. Businesses may be eligible to claim back 104.5% of the money they pay out in SMP if their total National Insurance Liability in the previous tax year was £45,000 or less.
The rate of SMP is 90% of a woman's average weekly earnings for the first six weeks, followed by the lesser of a flat rate of - currently £108.85 a week - or 90% of her average weekly earnings for the remaining 33 weeks. 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 SMP or MA.
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