Can an employer furlough employees on maternity leave?

19 May 2021

Since its announcement back in March 2020, the coronavirus Job Retention Scheme has helped employers retain staff throughout the pandemic crisis.

It works by instructing employers to place staff on furlough, after which the government funds a certain amount of their monthly wages. However, it continues to change—and some businesses aren’t sure how to deal with staff on leave.

If you need quick answers to your questions, then you can call us on 0800 028 2420 for immediate support. We also have back to work after coronavirus advice you can read.

However, in this guide we specifically explain what happens if you consider furloughing an employee away from work due to motherhood.

Can I furlough employees on maternity leave?

Yes, as outlined in the HM Treasury Directive on the use of the Scheme. Staff can be furloughed during maternity leave. But you need to proceed with care.

Crucially, you must remember the rights afforded to employees who are taking maternity leave. You should also be aware of the pay they require. 

Furloughed during maternity leave employee rights

If you use the scheme, you may have come across maternity leave and furlough confusions.

These principally involve whether you can do this with staff away from your business—or what rights they have if you can.

The HRMC has published numerous guidance on the use of the Job Retention Scheme, including how it interacts with maternity leave.

It outlines that, “Employees still have the same rights at work, including maternity and other parental rights.”

Staff on maternity leave have the right to:

  • Receive 90% of their earnings for the first six weeks of their leave.
  • Followed by the current rate of statutory maternity pay (SMP)—or 90% of their earnings (whichever is lower) for the remaining 33 weeks.

You can provide enhanced, or contractual, pay. And should do so in accordance with your contract of employment.

It’s also important to remember that staff on maternity leave have the same rights. Even if they were on furlough before.

And that means you can’t subject them to forms of discrimination due to their leave.

This is especially important when considering the best methods to place staff who are furloughed on maternity leave.

How to furlough employees on maternity leave

Contact your employees as normal and agree to a furlough claim with them.

You can calculate pay as you would for other staff on furlough, taking into account their normal wages.

Remember that you can backdate claims for furlough pay, providing the employee has done no work during the period.

However, you can’t include statutory maternity pay (SMP) and furlough in a claim for employee wages under the Job Retention Scheme. That’s the legislation set by the HM Treasury Directive.

This means any claims you submit must take off SMP amounts.

Placing staff on maternity leave who have been furloughed

Usual notification procedures for taking maternity leave, and receiving SMP, should apply in this situation.

Remember, staff are legally obligated to take two weeks of leave immediately following the birth. They need to take four if they work in a factory environment.

Can an employee go back to maternity leave after furlough?

Under present legislation, it doesn’t look like staff can return to it. That’s if you, as a business, end their leave to go onto furlough.

Need our help?

If you need any assistance with the Job Retention Scheme and your employees, get in touch for immediate support: 0800 028 2420.

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