Holidays and hours at work - Maternity Leave

An initial note of warning - the lawyers have focused upon this area as a result the whole aspect of maternity is full of pit falls. The best advice is if there is any doubt or a pregnant employee/ new mother seems to be unhappy seek professional advice. Always seek professional advice before dismissing, making redundant or employing a returning employee on different terms/hours.

What follows is a brief guide to maternity benefits as they apply at their minimum level. Employers often permit employees more generous terms. Detailed information regarding maternity benefits is available on the DTI website. All rights set out below apply in full to part-time employees. Pregnant employees are entitled to the following benefits:

Time off for antenatal care
Maternity leave
Statutory Maternity Pay
Protection against unfair dismissal
Health and safety protection (see Health and Safety pages indexed left).

Definitions

Childbirth, is defined as the live birth of a child, or a still birth after a pregnancy lasting at least 24 weeks.

Expected week of delivery, is the week between midnight Saturday and the following Sunday in which the baby is expected to be born.

Actual week of delivery, is as above but the actual week the baby is born.

Normal pay, is generally easy to identify but if pay levels vary then average the pay over the previous 12 weeks. Overtime is only counted if it is compulsory.

Employed, these benefits generally do not apply to the self-employed. But employers should take further advice where agency staff are concerned and should also note that the law takes a strict view of the definition of self-employed.

Time off for Antenatal Care

Employees are entitled to time off for antenatal care paid at their normal rate of pay. This includes medical examinations, parent craft classes, relaxation classes etc. These rights apply no matter what the length of service.

Ordinary Maternity Leave

Maternity leave is applicable to paid employees, they generally do not apply to the self-employed.

All pregnant employees are entitled to at least 26 weeks’ ordinary maternity leave. This applies regardless of length of service. The leave starts no earlier than 11 weeks from the date the baby is due.

During Ordinary Maternity Leave the contract of employment continues and the employee must continue to receive all their contractual benefits apart from salary. This means that paid holidays will accrue, plus other possible benefits such as use of company car, mobile phone, health club membership etc. The employee's salary should also be increased in line with any normal increase in salary during their absence and/ or increase in seniority.

Pension rights also accrue as if she was working normally. Where the employer makes a contribution this should continue at the normal pay level, the employee' s contribution should be calculated at the level of Statutory Maternity Pay.

Accrued paid holidays should not be taken during the leave period but may be taken as normal at its end.

Professional advice should be taken regarding the non-payment of cash bonuses during ordinary maternity leave.

Additional Maternity Leave

Employees who have completed 26 weeks service by the beginning of the 14 week before the expected week of delivery are entitled to 26 weeks additional maternity leave. Such additional maternity leave begins at the end of ordinary maternity leave.

During Additional Maternity Leave the employee is not paid but specific parts of the contract of employment continue. These are the provision of redundancy compensation, notice of termination of the contract. However the benefits that are compulsory during Ordinary Maternity Leave need not be offered by the employer. But general pay increases and progression on grounds of seniority must all be honoured.

Pension rights may also accrue during additional maternity leave, depending upon the rules of the pension scheme, employers should seek specific advice.

We strongly advise that employers regard additional maternity leave as qualifying for normal paid holiday.

Compulsory maternity leave

This applies to all employees. They must not return to work for two weeks after the birth (four weeks for factory employees).

See also parental leave indexed opposite.

Statutory Maternity Pay

Employees who have completed 26 weeks service by the beginning of the 14 week before the expected week of delivery are entitled to Statutory Maternity Pay (SMP). This is paid by the employer and calculated at 90% of average weekly earnings for 6 weeks and £106 per week for the remaining 20 weeks (or 90% of her average earnings if that figure is lower than £106).

SMP is paid from the date the employee is absent from work in the four weeks up to the expected delivery date. Note it is only paid when the employee is absent and is paid on the normal wage cycle.

In turn employers are reimbursed 92% of the SMP they pay out.

Maternity Allowance

Employees who have the 26 week qualifying service but with another employer (including self-employed) can claim a Maternity Allowance (MA) from the Job Centre. This is paid for 26 weeks at a level of 90% of average earnings up to a maximum of £106.

Where an employee is receiving SMP or MA they are not entitled to Statutory Sick Pay.

Where an employee does not qualify for SMP or MA they should still contact the Job Centre because they will probably be entitled to a disability allowance or possibly income support and/or Working Tax Credit.

Notification

To qualify for maternity benefits employees must notify their employer they are pregnant before 14 weeks from the expected date of birth, giving the date from which she intends to take maternity leave and the expected birth date.

Exceptions as regard notice apply if the baby is born early.

Within 28 days of receiving notice of a maternity leave date from an employee the employers should give the employee notice of when their Ordinary Maternity leave is expected to finish, i.e. 26 weeks after they begin maternity leave.

If the employee intends to return to work before the end of Ordinary Maternity Leave or Additional Maternity Leave they must give their employer at least one months notice.

Return to Work

Employers should take a sympathetic approach if an employee is unable to return to work at the end of maternity leave. They should carefully investigate the circumstance with the employee. Our advice would be to ring ACAS to get advice (free) or to seek other professional advice on subsequent actions to take.

Employees have a right to return to the same job they left. If that is not possible the employer must have valid reasons (e.g. reorganisation) not connected with the employees absence. If return to the same job is not possible the employee must be offered a comparable job with no detriment. This alternative job must be suitable and one they are capable of doing.

Employees have the right to request flexible working hours when they return to work. Employers have the duty to give such a request serious consideration. See flexible working page indexed opposite.

See redundancy section if an employee on maternity leave may be redundant.