Statutory Maternity Leave

09 July 2019

Inevitably, one of your employees will fall pregnant. Like a sickness and other life events, you must take this into account when planning. Similar to sickness, the government gives pregnant women some statutory rights.

As they are statutory, you will face legal action if you restrict these rights. With maternity being a protected characteristic, you need to be careful with discrimination too. Costly legal fees and a damaged reputation can follow any laws broken around maternity.

Let’s look at what these statutory rights are and how you can be prepared for any maternity leave.

What is statutory maternity leave?

Maternity leave entitlement refers to the time off afforded to employees to get pregnant, have the baby, then care for their newborn child for a period.

In the UK, women have a statutory right to take up to 52 weeks’ leave from work to have and provide immediate care for a baby. This is regardless of their length of service.

You must afford all employees opportunity to use all of their maternity employment rights. 

They may also qualify for up to 39 weeks' statutory maternity pay (SMP), or maternity allowance if they do not qualify for statutory maternity pay.

Therefore, if an employee asks you ‘when can I take maternity leave?’, the answer is from day one of their employment. This is the case, even if they were aware they were pregnant before you offered them the job.

How long is maternity leave?

Although employees are entitled to take the full 52 weeks of leave, they do not have to take it all.

Therefore, when considering the question ‘how long is maternity leave in the UK?’, it is important to understand how employment law breaks down maternity leave. This is as follows:

  • Ordinary maternity leave of 26 weeks
  • Additional maternity leave of 26 weeks.

Employees must take two weeks of leave immediately following the birth of their child, which increases to four weeks if they work in a factory environment.

This is for health & safety reasons, to help them recover from childbirth. The law includes this period of compulsory leave within the ordinary maternity leave period.

When can maternity leave start?

The simple answer to when does maternity leave start is that employees can start it no sooner than the 11th week before the expected week of childbirth (EWC).

However, your employees will carefully consider when to start maternity leave as the law grants them flexibility.

Law requires a pregnant employee to notify her employer of her intention to take maternity leave. They must do this by the end of the 15th week before the expected week of childbirth (EWC), known as the 'qualifying week' unless this is not reasonably practicable.

Maternity leave will start on the requested date, unless:

  • The baby is born before maternity leave has started.
  • The woman is absent from work for a pregnancy-related reason in the four weeks before the expected week of childbirth.

A woman can change her mind about when she wants her maternity leave to start. As long as she gives her employer at least 28 days' notice of the change, unless this is not reasonably practicable.

They must specify the length of leave that they wish to take. If the employee wishes to return to work early, she will need to give you at least eight weeks' notice. You will not have to let her return early if this is not reasonably practicable.

Employee questions on ‘when can I start maternity leave?’ and ‘how long should the leave last?’ will depend upon one crucial aspect – pay whilst on the leave.

Maternity pay entitlement

Employees who have worked for you for at least 26 weeks by the 15th week before the EWC (SMP qualifying week) are entitled to maternity statutory pay. This is a set rate by the government. They must also meet the following criteria:

  • Have average earnings of at least the lower earnings limit for National Insurance contributions (£120 per week from 6 April 2020) in the eight weeks before the qualifying week
  • Have given you at least 28 days' notice of the date on which she wants the payment of SMP to begin (or as soon as reasonably practicable if it is not reasonably practicable to give 28 days' notice)
  • Have provided evidence of her expected week of childbirth (normally the MAT B1 certificate).

You pay SMP for a maximum of 39 weeks. It pays the first six weeks at 90 percent of the employee's normal weekly earnings. It pays the remaining 33 weeks at a flat rate of £151.20 per week or 90 percent of the employee's normal weekly earnings - whichever is lower.

You are free to provide more pay than the statutory minimum if you choose, however you cannot provide less. This means that when asked ‘how many weeks is maternity pay?’ You can base this on the statutory minimum or the additional amounts as set out in your employment contract.

Use our free maternity pay calculator to work out your employees SMP.

Maternity allowance eligibility

What if an employee does not qualify for SMP?, Perhaps because she does not have the relevant length of service or the level of earnings. She may qualify for maternity allowance instead.

This will depend on her employment and earnings history. Employees claim maternity allowance through Jobcentre Plus, who also pays the allowance for up to 39 weeks.

This is at a flat weekly rate of £151.20 (from 5 April 2020) or 90 percent of average weekly earnings, whichever is lower.

A woman who does not qualify for 39 weeks of maternity allowance may qualify for 14 weeks of maternity allowance. It pays this at £27 a week if she carries out unpaid work in the business of her self-employed spouse or civil partner, and the spouse/civil partner pays Class 2 National Insurance contributions.

Self-employed women who claim maternity allowance may pay their Class 2 NICs early before their self-assessment is due, so it may award them the standard rate for their claim.

Maternity leave and holiday days

Employees on maternity leave continue to accrue statutory and contractual annual leave throughout ordinary and additional maternity leave.

An employee cannot take an annual holiday during maternity leave. Where the employee cannot take all of their accrued statutory leave, it is advisable to allow them to carry this over to the following year. This is to avoid discrimination cases.

Summary

  • The law permits mothers the statutory right of up to 52 weeks’ maternity leave from work to have and provide immediate care for their baby.
  • You must understand your responsibilities both prior to and following maternity leave. And you must not discriminate against an employee on the grounds of pregnancy.
  • Statutory maternity leave pay is currently set at 90% of the employee’s average weekly earnings (uncapped) for the first six weeks, and then £151.20 or 90% of the employee’s average weekly earnings for the following 33 weeks (whichever is lower).

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