Everything you need to know about maternity leave

Maternity brings its own set of unique challenges and changes that make it impractical to continue at work as normal.

It is important that both employee and employer know what rights they have and what is expected of them through the pregnancy and any subsequent maternity leave. This article will help to explain maternity leave from both sides of the table to give you a better understanding of what is expected.

Due notice

Maternity leave can begin any time from the 11th week before an employee’s due date onwards or from the 4th week before their baby is due if they are absent from work due to reasons relating to pregnancy.

It’s very important that once an employee discovers they are pregnant that they give their employer due notice. This will not only help the employer to plan ahead but also protect the employee should any disputes arise. A meeting should be held to discuss the due date, when maternity leave will be taken and how the employee will use up any overhanging annual leave before they go.

Although an employee may have reservations about telling their employer, it is important that they do as an employer can delay maternity leave or the start date of maternity pay if adequate notice of 28 days has not been provided. However, for an employer to delay maternity leave they must provide the employee with written notice of their intentions within 28 days of the employees leave request.

Risk assessment

Employers have a duty of care and should be sure to carry out a risk assessment after they have been informed of the pregnancy. It should take into account any risks to expectant mothers from work which could include physical strain and exposure to chemicals or hazardous working conditions among other things. An expectant mother can expect to see changes in her dexterity, agility, co-ordination and reach and so all of these things should be considered by the employer when performing a risk assessment.

Ante-natal appointments

Your employer is required to provide you with paid time off to attend ante-natal appointments and classes, as required by your midwife. However, the amount of time taken should be deemed reasonable and an employer is entitled to ask for proof of appointments once the second appointment has taken place. The employee must be paid at their normal hourly rate of pay during any appointment.

Eligibility for maternity leave

Most female employees in the UK are allowed up to 52 weeks maternity leave, regardless of how long they have worked for their employer – so long as they have given the correct amount of notice and have an employment contract. However, there are some exceptions and there are different rules for self-employed women, share fisherwomen or women serving in the armed forces or police forces.

Leave allowance

Employees can take up to 52 weeks’ maternity leave with the first two weeks being compulsory. The first 26 weeks of their leave is called ‘Ordinary Maternity Leave’ and the last 26 is known as ‘Additional Maternity Leave’.

Keeping in touch days

During their maternity or adoption leave, employees have the option to work for up to 10 days, which are called ‘keeping in touch days’. They are entirely optional, and need to be agreed by the employer and employee.

Self employed mothers

Being your own boss has many perks. The independence to be able to work on your own terms can be liberating but when it comes to planning a family, self-ers lose out as they do not receive Statutory Maternity Pay (SMP).

However, self ers are entitled to Maternity Allowance (also known as MA) which is provided by the government. It is paid fortnightly or every four weeks for a total of 39 weeks.

As long as the expectant mother is tax-registered, is making national insurance contributions, is earning at least £30 per week and has done so for a minimum of 26 weeks then they will receive payments from the 11th week before the due date.

The self er must contact Jobcentre Plus to request a MA1 form. If accepted they will receive £135.78 per week or 90 per cent of their average earnings if that is a smaller amount.

Statutory maternity pay (SMP)

Statutory maternity pay (SMP) is financial support designed to help expectant mothers take time off before and after their baby is born.

To be eligible for Statutory Maternity Pay (SMP) an employee must meet the following criteria:

  • Be on an employer’s payroll
  • Have provided correct notice to their employer
  • Given correct proof of their pregnancy
  • Have worked continuously for at least 26 weeks up to the 15th week before the expected week of their due date
  • Earn at least £111 a week (gross) in any 8-week relevant period.

SMP can be paid for up to 39 weeks in total and the amount can vary through that period. For example, in the first 6 weeks the employee must be paid 90% of their average weekly earnings (AWE) before tax and for the remainder of their leave (33 weeks) they must be paid £138.18 or 90% of their AWE, whichever is lower.

Different rules do apply to some types of workers including agency or casual workers, NHS employees, mariners, directors of companies and teachers. You can find out more about how different employment types affect SMP entitlement here: https://www.gov.uk/statutory-maternity-pay-how-different-employment-types-affect-

Statutory Paternity Pay

An employee can also take time off and receive pay if their partner is expecting a child, either through pregnancy or adoption. 1 or 2 weeks of paid Ordinary Paternity Leave are most commonly taken, however in the future up to 26 weeks could be potentially taken under shared parental leave reforms being introduced, so long as the mother or adoption partner returns to work.

Shared parental leave reforms

From April 2015, new parents will benefit from reforms to maternity rights. They will have access to a flexible system of leave with both mothers and partners being able to take up to 52 weeks of leave, collectively. Shared parental leave (SPL) and statutory shared parental leave (ShPP) must be taken between the child’s birth and their first birthday.

To qualify for SPL, a candidate must share the care of their child with one of the following:

  • Their husband, wife, civil partner or joint adopter
  • The child’s other parent
  • Their partner (if they live with the other carer and the child)

They must also have been in employment for at least 26 weeks by the end of the 15th week before the due date (or the date they were matched with their adopted child). For their partner to qualify, they must have been working for at least 26 weeks during the 66 weeks before the baby is due, earning at least £30 a week (on average).

It is worth noting that an employee may already qualify for ShPP if they meet the eligibility for Statutory Maternity Pay.

An employee that is eligible for shared parental leave pay who ends maternity leave and Maternity Allowance early can then take the remaining 52 weeks of leave as SPL up to a maximum of 50 weeks. Or they could choose to take the rest of the 39 weeks of pay or Maternity Allowance as statutory shared parental leave (ShPP).

ShPP payments are £138.18 a week or 90% of the person on leave’s average weekly earnings, whichever is lower.

Should the employees wishing to take SPP change their minds then there is a six week window in which the mother or adopted parent, etc can decide to remain on leave.

Returning to work

As well as supporting an employee through their pregnancy it is also important to facilitate their transition back to work. Although an employee can choose to take the full 52 weeks of Maternity leave, they are not actually bound to do so and may prefer to return once their SMP ends. To do this they must give their employer notice of at least eight weeks.

Illness

If an employee happens to fall ill and cannot return to work at the end of their Statutory Maternity Leave then they must inform their employer by following procedures that they would normally follow whilst working there.

Breastfeeding

It is important that an employer is informed in writing if a returning mother is planning to breastfeed her child. This is so that the employer can carry out a risk assessment to identify any risks to the mother and child.

Flexible working patterns

Any parent of a child under 17 is entitled to request a flexible working pattern from their employer. By law the employer must consider their request and respond to them in writing.

The employee who is requesting this must write to their employer offering details of how they wish to work flexibly and when they want it to begin. The letter must also include details of how any problems that could arise from them not being at work on certain days could be dealt with. If they have applied for flexible working hours previously then this must also be included.

The employer should send a response to this request in writing. If they agree with the request then they should include a statement listing the agreed changes and also provide a start date for the employee to begin flexible working hours.

Should the employer reject the application then they should inform the employee, again in writing, of the reason why.

Valid reasons for rejecting an application for flexible working hours include:

  • Recruitment issues which mean they cannot replace the employee
  • Work cannot realistically be shared among other staff members
  • The flexible working hours will incur extra costs which would harm the business
  • The business will be unable to cope with the needs of their customers
  • The business is planning changes to their workforce
  • Flexible working hours will damage the quality and performance of the business
  • The working hours proposed aren’t busy enough for the employee to be working

If an employee has their request for flexible working hours rejected and they feel that this has happened unfairly then they may be able to complain to an employment tribunal, however it is important to take advice from a trained solicitor http://www.rollingsons.co.uk/Employment-Law-Employee in this situation.

Redundancy for workers on maternity leave

If an employee’s job is made redundant while they are away on parental leave then they should be provided with correct notice by their employer as well as being paid out any monies they are owed, i.e. redundancy pay.

The law aims to protect mothers during their pregnancy and this means giving them fair treatment so that they can return to work without facing difficulties due to their pregnancy. This means that an employee on maternity leave cannot be made redundant because she is pregnant or taking maternity leave. If this happens then the employee has a very strong case for unlawful discrimination. However this does not mean that an employee on maternity leave cannot be made redundant for other reasons.

It is also important to remember that while you can employ an interim worker to fill in for worker on maternity leave, you cannot replace them with that worker.

If you have concerns, are unsure of your rights or you are involved in a dispute with your employer then you should seek legal advice. Rollingsons team of employment solicitors can offer specialist knowledge that will help you navigate toward the best possible outcome. Please click here to find out more.

Preventing potential problems involving maternity law is just as important as resolving them, so if you feel that you are in need of legal advice regarding employment law, contact Rollingsons on 020 7611 4848 to arrange a free consultation or click here link to to find out more.