Statutory Maternity Pay: what happens when circumstances change?

Whilst all pregnant employees have the right to take 52 weeks’ maternity leave, regardless of their length of service, the right to receive 39 weeks of statutory maternity pay (SMP) at £148.68 per week comes with additional restrictions.

Employees who fail to meet the SMP eligibility criteria may be entitled to ‘maternity allowance’ which is paid to them directly by Jobcentre Plus meaning you will have no direct involvement.

There are other scenarios which may affect an employee’s entitlement to SMP:

Employee leaves your company

Once your employee has qualified for SMP, her entitlement is not affected if she leaves your company regardless of the reason e.g. dismissal, redundancy, resignation etc. You still have to pay her the full entitlement.

Working for someone else during the pay period

If your employee starts work for another employer after the qualifying week, but before the baby is born, you don’t have to pay SMP for any weeks they work for that employer after the baby is born. You must pay SMP for any full maternity weeks your employee doesn’t work for that employer. If your employee’s contract with that employer ends during the maternity pay period, their entitlement to SMP will restart until the end of that period.

If your employee starts working, after the baby is born, for an employer who did not employ her in the qualifying week, she will no longer be entitled to receive SMP from you. If your employee’s contract with that employer ends during the maternity pay period, their entitlement to SMP will not restart.

If she returns to work, after the baby has been born, for an employer who employed her in the qualifying week, she still needs to get SMP from you.

Doing some self-employed work during the maternity pay period does not affect the employee’s entitlement to SMP from you.

Employee is in legal custody

When an employee is taken into legal custody, her entitlement to SMP stops. You do not need to resume payment when she is released.

Baby is stillborn

Full entitlement to SMP will continue when the baby is stillborn. A stillbirth occurs when the baby is stillborn after 24 weeks of pregnancy. Where a miscarriage occurs up to the 24th week of pregnancy, the employee will have no entitlement to SMP, or maternity leave.

Baby dies

If the baby dies during the maternity pay period, payment of SMP continues as normal. Even if the baby survives for only an instant after the birth, this is a live birth and the rules for a live birth apply.

Employee dies

Entitlement to SMP will stop after the week in which the employee dies.

If an employee does not qualify, or does qualify but subsequently loses her entitlement to SMP, you must give her form SMP1 to explain why she does not/no longer qualifies. This must be given no later than 7 days after making your decision.