Guide To Maternity Leave and Pay

Maternity Leave is split into two types - Ordinary and Additional. Ordinary Maternity Leave lasts for 26 weeks and all Employees are eligible, regardless of their length of service with their employer.

Workers and Freelancers aren’t generally entitled to Maternity Leave, but may be entitled to some form of Maternity Pay (see our Maternity Pay chart). Those who have their own limited companies (Personal Service Companies) are eligible as “employees” of their own limited company to Maternity Leave - and may be eligible to Maternity Pay (see our Maternity Pay chart).

Since the 1st October 2011, certain “agency workers” have been entitled to paid time off for antenatal appointments - see our guide to antenatal appointments here, and our guide to the Agency Workers Regulations here.

Who qualifies for ordinary maternity leave?

To qualify for maternity leave, a woman must tell her employer by the end of the 15th week before the expected week of childbirth (EWC):

• That she is pregnant
• What the expected week of childbirth should be, by means of a medical certificate MatB1
• The date she intends to start maternity leave. This can normally be any date as long as it’s not earlier than the beginning of the 11th week before the EWC. You can change your mind about when you want to start leave, providing you give your employer 28 days notice
• If you’re sick with a pregnancy related illness during the four weeks before your EWC, your “ordinary” maternity leave will start automatically.

In Autumn 2013, the European Court of Justice decided that a surrogate mother was also entitled to maternity leave. The UK Government amended legislation in 2015 that allows prospective parents in a surrogacy arrangement who apply for a parental order eligibility for statutory adoption leave and pay, shared parental leave and pay, and paternity leave and pay.

What rights does a woman have while on her ordinary maternity leave?

• During the 26 weeks maternity leave, you are entitled to benefit from all of your normal terms and conditions of employment, except for salary/pay (including any overtime allowances, other regular payments etc.), and this period counts towards your continuous service
• You should continue to receive your normal benefits, e.g. accruing holiday entitlement and benefits such as life insurance, permanent health insurance, medical cover, and any form of vouchers you receive (see below details of Donaldson v Peninsula). Please note that company cars and car allowances are more complicated, so we haven’t covered them here - please contact us if you a specific query related to this
• The minimum period of maternity leave you must take following the birth of your child is two weeks (or four weeks if you work in a factory)
• If you wish to return to work earlier than your ordinary maternity leave (or during your additional maternity leave - see below), you need to give your employer eight weeks notice of your new return date. A new type of employment contract - the Employee Shareholder Contract - came into effect on 1st September 2013. Under this type of contract, employees would have to give 16 weeks notice - see here for more details
• At the end of ordinary maternity leave, you have the right to return to your original job on the same terms and conditions. If a redundancy situation arises while you are away, you must be offered a suitable alternative vacancy if one is available (see below - there are changes to this protection from 6th April 2024 and also our guide to Redundancy and SRP). If the employer can’t offer you suitable alternative work, you may be entitled to redundancy pay. For more information about redundancy during maternity, see our updated details below.
• If you are employed on a Fixed Term contract that expires during your maternity leave, there is no obligation on your Employer to re-employ you at the end of your maternity leave period (unless you’re in a Redundancy situation - see below). However, if they don’t re-employ you, the key question will be why the contract was not renewed; if this was related to your pregnancy or maternity leave, your dismissal is likely to be consider automatically unfair at an Employment Tribunal. You don’t need continuous service of a year to claim this, or two years if your employment started on or after the 6th April 2012. You may also have a claim for sex discrimination.

Additional Maternity Leave

All Employees, regardless of their length of service, are now entitled to an additional 26 weeks maternity leave. Additional maternity leave starts immediately after ordinary maternity leave and continues for a further 26 weeks.

This additional leave means you can be away from your job on maternity leave for 52 weeks in total, but you don’t need to take this Additional Maternity Leave.

Additional Maternity Leave is usually unpaid after the first 13 weeks - see our Pay Chart - unless your employer gives you contractual rights to pay during this whole period.

During this period, your contract of employment continues (unless you are on a Fixed Term contract that expires) but with limited terms and conditions:

• You’re not entitled to normal salary/pay/allowances (unless your contract says differently)
• The notice period you or your employer needs to give to end your employment must be adhered to
• Your employer must adhere to agreed redundancy payments and access to the disciplinary and grievance procedure
• You must adhere to your obligations to the disclosure of confidential information and working for another employer
• Additional maternity leave does count toward your continuous employment with regards to statutory employment rights, but not necessarily towards continuous employment with regards to your contractual rights.

From October 2008, you’re also entitled to your normal full benefit package throughout Additional Maternity Leave, including holiday entitlement but excluding pay and pensions. This includes receiving any entitlement to life insurance, permanent health insurance, medical cover or any form of voucher you receive. In Donaldson v Peninsula Business Services in 2015, an employment Tribunal found it was discriminatory (unlawful sex discrimination) for an employer to require employees to leave childcare voucher salary sacrifice schemes, which are part of an employee’s remuneration under Regulation 9 of the Maternity and Parental Leave Regulations 1999, and was not a Benefit in Kind. The employer didn’t have to provide childcare vouchers during maternity leave (in effect, HMRC guidance is incorrect). The vouchers were not a Benefit in Kind additional to her salary, but a ‘diversion’ of her salary. If the childcare vouchers were provided in addition to salary, they would be a Benefit in Kind and should be maintained. The EAT said that Parliament didn’t intend that employers must continue providing childcare vouchers when an employee was ONLY receiving SMP, and there was no salary from which a deduction could be made to pay for the vouchers. This decision may be challenged or appealed. 

When an employer writes to you setting out your return date, they will assume that you will take your whole 52 weeks maternity leave entitlement (Ordinary and Additional). If you wish to change your return date, you must give your employer eight weeks notice of your return to work date.

What rights do you have at the end of additional maternity leave?

• You’re entitled to return to your original job, or, if this is not reasonably practicable, to a suitable alternative job. If your employer cannot offer you suitable alternative work, you may be entitled to redundancy pay. A European Court of Justice case in September 2013 (Halliday v Creation Consumer Finance Ltd) found that an employee absent on parental leave could be made redundant as long as the reason for the dismissal was not the parental leave. This will apply to maternity leave and paternity leave, too
• You can also take four weeks of Parental Leave at the end of your maternity leave without affecting your return to work rights
• You can also take Shared Parental Leave
• If you decide not to return to work at all, you must give your normal “contractual” notice to resign.

You can read the 2014 guide by Acas about breastfeeding employees in the workplace here - this outlines what employers are required to do and consider, including:

• The Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide suitable facilities for breastfeeding mothers to rest and lie down, and to provide adequate rest and meal breaks (toilets are not classed as “suitable” facilities)
• The right not to be discriminated against on the grounds of sex or on the grounds of pregnancy/maternity
• In September 2016, an employment tribunal ruled that EasyJet had committed indirect of sex discrimination against two female members of the cabin crew by not providing them with better arrangements to breastfeed while at work. Both women asked to work shorter eight hour shifts to allow them to express milk, but EasyJet refused on safety grounds. It is reported that EasyJet didn’t take into account the medical advice of four GP’s, didn’t undertake a risk assessment or obtain occupational health reports. Once the tribunal case was lodged, EasyJet offered the women ground duties for six months, but wouldn’t extend this period. The Tribunal found that EasyJet had proposed several unworkable solutions that would cause significant detriment to the claimants, and decreed that EasyJet should have reduced their hours, found them alternative duties or suspended them on full pay. This is a first tier ruling and is not binding on other tribunals. 
• In August 2022, in an employment tribunal case Mellor v The MFG Academies Trust, the Tribunal decided that Ms Mellor should succeed with the sexual harassment claim that she had brought. When Ms Mellor returned from her second maternity leave in summer 2020 she asked for a room to be made available for her to express breast milk, but this was not arranged, so Mellor had to express milk either in the staff toilet or in her car during breaks. The toilets were dirty and the Tribunal found this created a degrading and humiliating environment for her to express milk, which was directly related to her sex.  While the Workplace Regulations 1992 require Employers to provide suitable facilities, it does not require employers to provide facilities specifically for breast-feeding or expressing milk.  The Health & Safety Executive have produced guidance that say the facilities must be ‘suitable’ for breastfeeding mothers to rest, including somewhere they can lie down, that are hygienic and private, and include somewhere to store their milk, e.g. a fridge.
• In addition, Employers should conduct a risk assessment relating to breastfeeding in the workplace.

Maternity Pay

• You can see details about Maternity Pay here
• From 2015, parents will be able to share parental leave (shared parental leave)
• If you are employed on a Fixed Term (Employee) or Casual Contract (Worker) when pregnant, you’re likely to be entitled to some form of Maternity Pay if you pay Class 1 National Insurance contributions (see the chart above). If your contracts ends during your ordinary maternity period, you will continue to receive SMP or Maternity Allowance for its total duration, even if your contract ends before this
• Freelancers are usually not entitled to Statutory Maternity Pay (or adoption pay, paternity leave, parental leave) as this is only available to Employees and Workers (ie. those paid via PAYE and who pay Class 1 National Insurance contributions). Freelancers who work under a contract for service and invoice for payment are not eligible. You may, however, be eligible for State Maternity Allowance (see the above chart)
• There are no age restrictions to receiving statutory maternity pay or maternity allowance.

Antenatal appointments

As of the 1st October 2014, prospective fathers/partners of pregnant women and intended parents in surrogacy arrangements have the right to take time off to attend two antenatal appointments with their partner. Employees don’t need a minimum length of service to qualify for this right. There’s no legal right to paid time off, and the time off to attend appointments will be for a maximum of 6.5 hours on each occasion. This applies to all employees and agency workers with 12 weeks service. ‘Fathers’ must provide reasonable notice for these appointments, but there’s no legal obligation to provide evidence of them. Employers can request a written declaration from the ‘father’ stating his/her relationship to the mother, and that the purpose of the time off is to attend the antenatal appointment with her. The Government has issued guidance on antenatal appointments for employers to answer the trickier questions, such as:

• What if the ‘father’ is expecting a baby with two different women at the same time? Apparently, he has the right to accompany each woman to two appointments.
• What if the ‘husband’ and ‘father’ are two different people? Apparently, both have the right to attend antenatal appointments.

See our guide to Shared Parental Leave here.

Other information

As of the 1st April 2007, “Keeping In Touch” days have been introduced. During either your Ordinary or Additional Maternity Leave, employees can now do up to 10 “KIT” days work for their Employer, as long as both parties agree to what work will be done and how much they will be paid. “Work” could include anything relevant, e.g. training, attending conferences/meetings. These “Keeping In Touch” days can’t be taken in the first two weeks after the baby is born and don’t need to be taken at all.

Information About Pensions

During paid maternity leave (39 weeks if you’re receiving Statutory Maternity Pay, longer if you are receiving Occupational Maternity Pay that lasts more than 39 weeks), if you’re a member of an Occupational Pension scheme, your paid maternity leave is defined as pensionable service. This means that both employees and employers continue to make contributions to your pension scheme - your contributions are based on the actual pay you are receiving while on maternity leave. You may be given the opportunity by your employer to top up your contributions to the normal level so your pension fund does not suffer.

Holiday Entitlement Through Maternity Leave

It is generally understood that employees cannot take holidays and be on maternity leave at the same time, although you can continue to accrue your normal holiday entitlement throughout the entirety of your maternity leave. You must therefore take your holiday entitlement before you start maternity leave, or at the end. For details on bank holidays that occur during statutory maternity leave, see our Working Time Directive page.

Redundancy During Maternity Leave

There can be a lot of confusion about what should happen if there is a redundancy situation whilst you are on maternity leave.

The law (Maternity and Parental Leave regulations) states:

“If it is not practicable by reason of redundancy for an Employer to continue to employ a woman on maternity leave, the Employee is entitled to be offered (not just invited to apply for) a suitable available vacancy with her Employer where there is one available.”

This basically gives the woman priority over other Employees who are at risk of redundancy, even if they are better qualified for the job. This right to a vacancy depends on two conditions:

• The work to be done must be suitable and appropriate for the woman to perform
• The terms and conditions of the new job, including the capacity and place in which she is to be employed, must not be “substantially less favourable”.

It’s also for the Employer to decide if the job is suitable, and they should provide written evidence for why the role is suitable or not.

Additionally:

• If an Employer breaches this regulation and dismisses an Employee on maternity leave, it will automatically be an unfair dismissal if a claim is bought.
• If there is no suitable alternative vacancy, a redundancy would be fair if all other redundancy procedures were followed. A European Court of Justice case in September 2013 (Halliday v Creation Consumer Finance Ltd) found that an employee absent on parental leave could be made redundant as long as the reason for the dismissal was not the parental leave itself. This will apply to maternity leave and paternity leave, too
• This also applies to people working on Fixed Term Contracts who are involved in a redundancy situation.

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In 2019 the Government announced a proposed Employment Bill, which would extend protection from discrimination in redundancy situations for those who are pregnant, or returning from maternity leave, adoption or shared parental leave.  In May 2023 the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 passed into law, and this law comes into effect on 6th April 2024. 

The new  Redundancy Protection Law explained:

From 6^th April 2024, in England, Wales and Scotland, there are new laws that provide a significant extension to the current rights for those employees who are pregnant, or on maternity leave/shared parental leave/adoption leave to be offered suitable alternative vacancies in a redundancy situation - where such a job exists – in priority to anyone else provisionally selected for redundancy.

The new laws:

During Pregnancy – if the Employer has been informed of the pregnancy, on or after 6^th April 2024, then a pregnant employee must be offered first refusal of a ‘suitable alternative employment’ in a redundancy situation. 

This enhanced protection starts from the date the employee tells their employer about their pregnancy (on or after 6^th April 2024). The ‘protected’ period of pregnancy ends on the day the SMP starts (or if not entitled to SMP, the protected period ends 2 weeks after the end of the pregnancy); however, they will then be covered by protection during Maternity Leave (see below).

During Maternity Leave – an employee must be offered first refusal of suitable alternative employment in a redundancy situation, for 18 months from the first day of the Expected Week of Childbirth (EWC), or 18 months from the exact birth date.  The ‘protected’ period applies to any maternity leave ending on or after 6^th April 2024.

So, for example, the new protection means that if an employee takes 12 months maternity leave, they’ll receive an extra 6 months of ‘protection’ after they return to work.

The new rules also apply to employees who suffer a miscarriage before the end of 24 weeks from the start of the pregnancy – they will receive protection for a period of 2 weeks after the pregnancy ends.  [After 24 weeks of pregnancy, a miscarriage/loss if classed as a still-birth and the employee is entitled to full SMP and will be entitled to 18 months redundancy protection (after the child’s date of birth/expected week of childbirth)].

During Adoption Leave - an employee must be offered first refusal of suitable alternative employment in a redundancy situation, for 18 months from the placement of the child or start of adoption leave.

During Shared Parental Leave – including fathers /partners who take SPL - an employee must be offered first refusal of suitable alternative employment in a redundancy situation, for 18 months from birth or placement for adoption, provided the parent has taken a period of at least 6 consecutive weeks of Shared Parental Leave and has not taken maternity or adoption leave. 

Applies for SPL starting on or after 6^th April 2024.

If the employee has taken less than 6 consecutive weeks of SPL the protection ends at the end of SPL.

If the employee has taken adoption/maternity leave before SPL, they are entitled to the protection period from the original maternity/adoption leave, and do not have an extension to the protection from the SPL.

Generally – if an employee takes a shorter ‘family’ leave period than they are entitled to, they are still protected for the same amount of time as described above.

Failure to offer an employee with this enhanced protected any ‘suitable alternative employment’ (where vacancies exist), will mean the employee has a claim for automatic unfair dismissal and this could potentially lead to a discrimination claim.

Guidance will be published by the Department for Business and Trade by April 2024.  However, at present there is no guidance about what Employers should do if there are more employees with priority status (protection), than there are suitable alternative vacancies!

.  An interesting case at the end of 2014 confirmed this (Sefton Borough Council v Wainwright). The Employer decided that two positions (including the claimant’s, who was on maternity leave) would be deleted and replaced by a new, single post. The two people performing the existing jobs (including the claimant on maternity leave) were interviewed for the new role. The other colleague was found to be the better candidate and offered the new job. No other vacancies were offered to the claimant, and she was made redundant. Her claim of automatic unfair dismissal succeeded because the employer hadn’t offered her a suitable vacancy where one was available - in this case, the new merged role. The fact that the job was only open to a limited pool (two people) didn’t mean that this wasn’t an available vacancy; the claimant was suitable for the new job, therefore qualifying it as a “suitable vacancy”. The claimant should have been offered the post without having to compete for it, even if her colleague was the better candidate.

The Employment Appeals Tribunal commented that if there’s more than one suitable vacancy, the employer doesn’t have to offer all of the vacancies, or even any particular vacancy to the employee on maternity leave. The Employer need only offer one vacancy, and can choose which to offer - provided the new job is for work which is both suitable in relation to the employee, appropriate for her to perform and is offered on terms and conditions which are not substantially less favourable than her old job.

To complicate matters for the employer, the EAT also said, in deciding which of several vacancies to offer a woman on maternity leave, the employer must act “proportionately” by balancing the interest of other employees, or it may risk a claim of discrimination from those who miss out on a vacancy because of the preferential treatment given to a female employee solely on account of her maternity.

They also looked at when the duty to offer a suitable vacancy arises, and decided this was triggered as soon as the Employer becomes aware that the woman’s role is redundant or potentially redundant.

In 2018, in Porras Gulsado v Bankia SA and others, the European Court of Justice held that pregnant workers can be dismissed in a collective redundancy situation and are not entitled to priority treatment. Collect redundancies are defined as dismissals for one or more reasons not pertaining to the individual workers concerned.

Recruitment During Pregnancy

An Employer cannot reject a recruitment candidate for a job (of any duration) because she is pregnant and is therefore unable to work for the whole duration of the job because of the start of her maternity leave. This is unlawful discrimination.

Parental Bereavement Leave

Should you require any information on Parental Bereavement Leaveyou can find out more information in our "Time off for dependants - Family emergencies and Parental Bereavement Leave" article.