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 for this 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 link below.  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 link below.

See our guide to antenatal appointments – from 1st October 2011 certain ‘agency workers’ will be entitled to paid time off for these appointments (as employees already are) – see our guide to the Agency Workers Regulations here.

This article covers:

• Who qualifies for ordinary maternity leave?
• What rights does a woman have while on ordinary maternity leave?
• Additional Maternity Leave
• What rights do you have at the end of additional maternity leave?
• Maternity Pay
• Keeping in touch days
• Information About Pensions
• Holiday Entitlement Through Maternity Leave
• Redundancy During Maternity Leave
• Recruitment During Pregnancy

Also, from 1st October 2014, prospective fathers/partners of pregnant women and intended parents in surrogacy arrangements, will 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 have 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 of these appointments but there is no need (legally) to provide evidence of the appointment.  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 have issued guidance on these ante-natal appointments for employers (which we must admit we haven’t yet read) but apparently, it answers the tricky questions of:

• what if the ‘father’ is expecting a baby with two different women at the same time! He has the right to accompany each woman to two appointments
• what if the ‘husband’ and ‘father’ are two different people! Both have the right to attend ante-natal appointments.

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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 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 are sick with a pregnancy-related illness during the 4 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 entitled to maternity leave. The UK government has amended legislation in 2015 so that prospective parents in a surrogacy arrangement who apply for a parental order are now eligible for statutory adoption leave and pay and for shared parental leave and pay and paternity leave and pay.

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

• During the 26 weeks maternity leave you’re entitled to benefit from all 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 and 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 have 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 planned, before the end of 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 to life on 1^st September 2013.  Under this type of contract employees would have to give 16 weeks notice).  More details here
• 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’re away, you must be offered a suitable alternative vacancy if one is available (see below 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’re 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 are in a Redundancy situation – see below).  However, if they don’t re-employ you the key question will be why the contract wasn’t renewed – if this was related to your pregnancy or maternity leave then your dismissal is likely to be seen as automatically unfair at Employment Tribunal (and you don’t need continuous service of one year to claim this – or two years if your employment started on or after 6th April 2012) and you may have a claim for sex discrimination.

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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 do not need to take this Additional Maternity Leave).

Additional maternity leave is usually unpaid (after the first 13 weeks) – see our Pay Chart below – 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 aren’t 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 still 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 continued employment with regards to statutory employment rights, but not necessarily towards continuous employment with regard to your contractual rights.

Since October 2008, you are entitled to your normal full benefits package throughout Additional Maternity Leave as well (including holiday entitlement but excluding pay and pensions).  This includes receiving any entitlement to life insurance, permanent health insurance and medical cover, any form of vouchers 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 a childcare voucher salary sacrifice scheme while on maternity leave.  However, this was overturned by the Employment Appeal Tribunal in March 2016; they found that provision of childcare vouchers under a salary sacrifice scheme was part of an employee’s remuneration under Regulation 9 of the Maternity and Parental Leave Regulations 1999, and was not a benefit in kind, and so the employer did not have to provide childcare vouchers during maternity leave (in effect HMRC Guidance is incorrect).  The vouchers weren’t a benefit in kind additional to her salary, but a ‘diversion’ of her salary.   If the childcare vouchers were provided in addition to salary then they would be a benefit in kind and should be continued. 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’ll 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.

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

• You’re entitled to return to your original job or, if this isn’t reasonably practicable, to a suitable alternative job. If your employer can’t 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, if you want more time off, 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 which include:

• 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
• Also in September 2016, an employment tribunal ruled that Easyjet had committed indirect sex discrimination against two female cabin crew by not providing them with better arrangements to breastfeed whilst at work.  Both women asked to work shorter eight-hour shifts to allow them to express milk, but Easyjet refused on safety grounds.  It’s reported that Easyjet didn’t take into account the medical advice from four GP’s and did not undertake a risk assessment or obtain occupational health reports.  Once the tribunal case was lodged Easyjet did offer them ground duties for six months but would not extend this period.  The Tribunal found that Easyjet had proposed several unworkable solutions that would cause significant detriment to the claimants and found that Easyjet should have reduced their hours or found them alternative duties or suspended them on full pay. (This is a first tier ruling so is not binding on other tribunals).

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Maternity Pay

• You can see details about Maternity Pay here
• From 2015, parents will be able to share parental leave
• If you are employed on a Fixed Term (Employee) or Casual Contract (Worker) when pregnant you are likely to be entitled to some form of Maternity Pay (if you pay Class 1 National Insurance contributions) – see the chart above.  If your contract ends during your ordinary maternity pay period you will continue to receive SMP or Maternity Allowance for its total duration, even if your contract ends before this.

• Freelancers aren’t usually 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.

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Keeping in touch days

From 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 your Employer, as long as both parties agree to the work being done (and what work will be done / how much you will be paid for the work).  ‘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.

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Information About Pensions

During paid maternity leave (39 weeks if you are 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, then 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’re 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).

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Holiday Entitlement Through Maternity Leave

It’s generally understood that employees can’t take holiday and be on maternity leave at the same time, although you continue to accrue your normal holiday entitlement throughout the whole period of your maternity leave.  Therefore you must 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.

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Redundancy During Maternity Leave

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

The Law (Maternity and Parental Leave regulations) says that:

“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.  But this right to a vacancy depends on two conditions (from the regulations above):

• That the work to be done must be suitable for the woman and appropriate for her to do, and
• That 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 of why the role is suitable or not.

Additionally:

• If an Employer breaches this regulation and dismisses an Employee on maternity leave then it will automatically be an unfair dismissal
• 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 wasn’t the parental leave (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.

An interesting case at the end of 2014 confirmed this (Sefton Borough Council v Wainwright).  The Employer decided that two positions (including the claimants who was on maternity leave) would be deleted and replaced by a single, new post.  The two people doing the existing job (including the claimant on maternity leave) were interviewed for the new role and 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 had not offered her a suitable vacancy where one was available (the new job).  The fact that the job was only open to a limited pool (two people) didn’t mean that it wasn’t an available vacancy; the claimant was suitable for the new job and therefore it was a suitable available vacancy – the claimant should have been offered the post without having to compete for it, even though her colleague was the better candidate.

The Employment Appeals Tribunal commented that if there’s more than one suitable vacancy the employer does not have to offer all of the vacancies, or even any particular vacancy (to the employee who is on maternity leave).  The Employer need only to 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 and appropriate for her to do and is offered on terms and conditions which are not substantially less favourable than the old job.

The EAT also said that (which complicates matters for the employer) 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 preferential treatment is 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.

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Recruitment During Pregnancy

An employer cannot reject a recruitment candidate for a job (of any duration) because she is pregnant and so could not work for the whole duration of the job (because she would be starting maternity leave).  This is unlawful discrimination.

Parental Bereavement Leave

Should you require any information on Parental Bereavement Leave, which is expected to become a legal right from April 2020 (date tbc), you can find out more information in our “Time off for dependants – Family emergencies and Parental Bereavement Leave” article.

If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk  – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

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