Maternity Leave and Pay

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1 Maternity Leave and Pay Legislation sets out a minimum regime for maternity leave and pay. Employers are free to provide more favourable contractual terms, however it is not possible for an employee to agree to less favourable terms and if any aspect of the employment contract is less favourable than the corresponding statutory equivalent then the employee can rely on the statutory right. The key rights for employees on maternity leave are as follows: Time off for antenatal appointments; Health and safety protection while pregnant and breastfeeding; Up to 52 weeks maternity leave; Statutory Maternity Pay (SMP) for up to 39 weeks; The right to return to the same job; Priority for alternative employment in redundancy cases; The right to request flexible working conditions on return to work; Protection from dismissal, detriment or discrimination by reason of pregnancy or maternity. RIGHTS DURING PREGNANCY Time off for antenatal appointments There is a statutory right to paid time off during working hours for the purpose of receiving antenatal care. This applies regardless of the hours worked or length of service. There is no statutory procedure for exercising the right and the employee should simply inform the employer of the date and time of the appointment, ideally with as much notice as possible. An employer is able to ask for evidence of antenatal appointments (save for the first appointment). Once an employer has requested such details, the employee cannot take time off until that evidence has been produced. The employee must then provide a certificate confirming pregnancy and a document showing that the appointment has been made. Where it is reasonable to do so, an employer may refuse an employee time off to attend antenatal appointments. However, there is no statutory guidance or case law advising on what constitutes reasonable in this context. It is considered that an employee is also entitled to time off to travel to and from the appointment. An employer is under a duty to pay an employee at her normal hourly rate of pay during the period of time off for antenatal care. An employee can bring a claim in the employment tribunal where an employer unreasonably refuses to allow her time off for antenatal care or where an employer refuses to pay her normal rate of pay for such time off. Such conduct could also amount to unlawful pregnancy and maternity discrimination.

2 Employees (regardless of their length of service) are entitled to one year s statutory maternity leave, which is made up of ordinary maternity leave (OML) and additional maternity leave (AML). Health and Safety Employers are obliged to protect the health and safety of their employees in the workplace, however an employer has specific duties in respect of pregnant employees and new mothers. Employers are obliged: To undertake a risk assessment in order to consider the workplace risks posed to pregnant employees, new mothers or their babies; To alter the employee s working conditions or hours of work to avoid any significant risk. The employer has a duty to do all that is reasonable to remove or prevent exposure to any significant risk that has been found, and must give information to the employee about the risk and what action has been taken; Where it is not reasonable to alter working conditions or hours, or where it would not avoid the risk, to offer suitable alternative work on terms that are not substantially less favourable ; and Where suitable alternative work is not available, or the employee reasonably refuses it, to suspend the employee on full pay. The HSE has prepared various guidance documents for employers in relation to health and safety at work and pregnant employees. MATERNITY LEAVE Employees (regardless of their length of service) are entitled to one year s statutory maternity leave, which is made up of ordinary maternity leave (OML) and additional maternity leave (AML). Only employees (including full-time, part time, fixed term or permanent employees) are entitled to maternity leave (not the self-employed or workers). OML is a period of 26 weeks leave available to all employees who give birth and follow the notification procedure (see below). AML is a period of up to a further 26 weeks immediately following the end of OML. This brings the total entitlement to 52 weeks statutory maternity leave. All employees who qualify for OML automatically qualify for AML. It is important to note that all employees must take a minimum of 2 weeks compulsory maternity leave commencing on the day on which childbirth occurs (factory workers must take a minimum of 4 weeks). An employer will commit a criminal offence if it allows an employee to work during this compulsory maternity leave. An employee can decide how long she wishes maternity leave to last; the minimum is 2 weeks and the maximum is 52 weeks. Notification Procedure An employee must notify her employer of her pregnancy by no later than the end of the 15th week before the Expected Week of Childbirth (EWC) in order to qualify for OML. If this is not reasonably practicable, then she must notify her employer as soon as is reasonably practicable. However, in practical terms many employees choose to notify their employer sooner than the end of the 15th week before the EWC. This is because the employee cannot rely on certain rights until her employer knows that she is pregnant. Such rights include paid time off for antenatal care, risk assessments and the protection from discrimination or dismissal due to her pregnancy.

3 It is important to note that all employees must take a minimum of 2 weeks compulsory maternity leave commencing on the day on which childbirth occurs (factory workers must take a minimum of 4 weeks). An employer will commit a criminal offence if it allows an employee to work during this compulsory maternity leave. Specifically and in order to qualify for OML, the employee must inform her employer of the fact she is pregnant, the EWC and the date on which she intends to OML to commence. She cannot commence OML earlier than the beginning of the 11th week before the EWC. There is no obligation for this notification to be in writing unless this is requested by the employer. Employees are advised to give the notice in writing as this triggers the employer s extra health and safety duties. An employer can ask an employee to submit a MAT B1 certificate. If the employee is claiming Statutory Maternity Pay, she must give the MAT B1 certificate to her employer. This certificate is signed by her doctor or midwife no earlier than the 20th week before the EWC and it confirms the employee s EWC. Commencing maternity leave Maternity leave can commence on any day that is not before the beginning of the 11th week before the EWC. Notice of the start date must be given to the employer no later than the end of the 15th week before the EWC and if this is not reasonably practicable, as soon as is reasonably practicable. The employer then has 28 days, from the date on which it received notice of the date the employee has chosen to commence her maternity leave, to inform her of the maternity leave end date. If an employee wishes to amend the commencement date of her maternity leave, notice must be given to the employer at least 28 days before the date she originally intended to commence her leave, or 28 days notice before the new date, whichever is sooner. If giving 28 days notice is not reasonably practicable, a shorter period may be given. Where an employee changes the date for commencement of maternity leave then the employer has 28 days in which to inform her of the amended end date. There are two situations in which maternity leave can commence automatically before the intended start date: Premature birth: where an employee gives birth before her OML, maternity leave will commence automatically on the day after the date of the birth. Pregnancy-related absence: where an employee is absent from work wholly or partly because of pregnancy after the beginning of the fourth week before the EWC, but before the date she has notified, maternity leave starts automatically on the day after the first day of her absence. In both of the two situations above, the employee must inform the employer as soon as possible of the date of the birth or the date the pregnancy-related absence started. The employer must advise the employee of the maternity leave end date within 28 days of being notified of the absence or birth. An employee is not obliged to give the 8 weeks notice of her intention to return to work early, if the employer has not notified her of her end date within the requisite timescales. RIGHTS DURING MATERNITY LEAVE Statutory maternity pay SMP is available to an employee where she: Has 26 weeks continuous employment with the employer up to and including the 15th week before the EWC (the qualifying week); Has average earnings of at least the lower earnings limit for National Insurance during the 8 week period ending with the 15th week before EWC;

4 Where an employee is absent from work wholly or partly because of pregnancy after the beginning of the fourth week before the EWC, but before the date she has notified, maternity leave starts automatically on the day after the first day of her absence. Remains pregnant 11 weeks before the start of the EWC, or has already given birth; Provides the employer with at least 28 days notice of the date she intends SMP to start. If this is not reasonably practicable, she must give notice as soon as is reasonably practicable; Provides the employer with a certificate (MAT B1); The definition of employee is wide in the context of SMP. It is wider than the definition of employee for maternity leave purposes and includes office-holders, crown servants and employed earners for National Insurance purposes (i.e. agency workers other than models and homeworkers). SMP is also available to an employee who ceases to work. Therefore, SMP is still payable for the 39 week period in the event that the employee resigns or is dismissed (provided she does so after the qualifying week). SMP is payable at the following rates: The earnings-related rate (90% of average earnings) for the first 6 weeks. The prescribed rate (or earnings-related rate if lower) for the remainder of the 39 week period. This rate is set by the Government each tax year. Eligibility for SMP and the rate payable depends on the employee s normal weekly earnings, which are calculated as a weekly average of the employee s total gross earnings from the employer and any associated employer during the relevant period. For monthly paid employees, the rate is calculated by considering the last two pay slips before the end of the Qualifying Week. For weekly paid employees, the rate is calculated using the last eight pay slips before the end of the Qualifying Week. The relevant period begins after the last normal pay day at least eight weeks prior to the Qualifying Week and ends with the last normal pay day on or before the end of the Qualifying Week. The employee s normal weekly earnings are calculated by considering the gross payment and include anything that is treated as earnings for national insurance purposes. This includes, for example, bonuses, overtime payments and commission paid to the employee during the relevant period. SMP must be recalculated in the event that an employee is eligible for a pay rise between the beginning of the relevant period and the end of the statutory maternity leave. It must be recalculated as if the pay rise had been received at the beginning of the relevant period. The default position is that SMP will be payable from the 11th week before the EWC but this date can be amended by the employee giving the requisite 28 days notice to her employer. In this case, the first day of the maternity pay period will be the date given in the notice. SMP will stop being payable if the employee returns permanently to work before the end of the SMP period. However, SMP entitlement will not be affected where an employee engages in keeping-in-touch days (see below). Employers are able to recover payments made in respect of SMP. Some employers will be eligible for small employers relief and will be entitled to recover 100% of SMP paid. Other employers are entitled to recover 92% of SMP paid. An employer cannot contract out of the liability to pay SMP nor limit an employee s entitlement. However, it is open to an employer to enhance maternity pay beyond SMP entitlement. Other rights and obligations The contract of employment continues throughout OML and AML, unless it is expressly ended by either party or expires without renewal in the case of a fixed term contract. Continuous employment also continues to accrue.

5 All employment benefits to which the employee is entitled will continue during maternity leave. Such benefits may include health insurance, use of a company car, contractual annual leave etc. During statutory maternity leave, an employee is entitled... to the benefit of the terms and conditions of employment which would have applied if she had not been absent. This does not apply to the terms for wages or salary (see SMP above). This means that all employment benefits to which the employee is entitled will continue during maternity leave. Such benefits may include health insurance, use of a company car, contractual annual leave etc. Any attempt to limit or amend the contractual provisions would be void and would constitute unlawful maternity discrimination. Annual leave entitlement continues to accrue during OML and AML. Under EU law, an employee also has the right to carry over unused holiday entitlement to the next holiday year if it cannot otherwise be taken because of maternity leave. An employee may attend up to ten keeping-in-touch (KIT) days during maternity leave. On KIT days, employees can carry out work or training for their employer. However, an employee cannot be required to work a KIT day and likewise an employee does not have the right to work a KIT day without her employer s agreement. An employee is entitled to decline to work a KIT day without suffering any consequences. It is unlawful for an employer to treat an employee unfavourably and /or to subject an employee to detriment for not agreeing to work KIT days, or for working or for considering such work. It is also unlawful to dismiss an employee for these reasons. Attending a KIT day does not mean that an employee will lose their entitlement to SMP. Ordinarily, an employee will be paid their normal earnings although this is a matter for the employer and employee to decide upon. Ending maternity leave If the employee has not advised her employer that she wishes to return at a particular time, then she is expected to return to work at the end of AML. There is no obligation for her to provide further notice in these circumstances. If the employee wishes to return to work earlier than the end of her statutory maternity leave then she must provide the employer with a minimum of 8 weeks notice of her return date. It is open to an employer to agree to the employee returning on shorter notice. Maternity leave can be extended by agreement between the employer and employee or by taking parental leave, annual leave or sick leave. Rights on returning to work Where an employee only takes OML or returns to work before the end of OML, she is entitled to return to the same job in which she was employed before her absence. This means that the terms of her employment must be the same as, or not less favourable than, they would have been had the employee not been on maternity leave. Where an employee returns to work after a period of AML, they are generally entitled to return to the same job. However, where it is not reasonably practicable for the employer to allow the employee to return to the same job (other than by way of redundancy), then the employee is entitled to return to a different job which is suitable and appropriate for the employee and where the terms and conditions are not less favourable to the employee than they would have been had she not been on maternity leave. Case law in this area is limited but it suggests that whilst a genuine business re-organisation may suffice, a desire for someone else to work in that role would not.

6 An employee who is on maternity leave can be included, as usual, in any redundancy programme, but she will have additional rights in the event that she is made redundant. An employee who is made redundant during maternity leave is entitled to redundancy pay as if she were not on maternity leave because statutory redundancy payment is calculated with reference to a week s pay (meaning her normal pay). It is important to remember that the employer could be at risk of a claim for maternity discrimination or unfair dismissal if the employer does not comply with its requirements. REDUNDANCY AND DISMISSAL If an employee is dismissed during maternity leave, the leave will conclude. Where the employee is entitled to SMP, she will continue to receive it during the SMP period as SMP remains payable in the event an employee ceases to work. An employee who is on maternity leave can be included, as usual, in any redundancy programme, but she will have additional rights in the event that she is made redundant. An employee who is made redundant during maternity leave is entitled to redundancy pay as if she were not on maternity leave because statutory redundancy payment is calculated with reference to a week s pay (meaning her normal pay). Acas have produced guidance commenting on how employers should approach a redundancy exercise which affects a pregnant employee or an employee on maternity leave. If the only or principal reason for an employee s dismissal or redundancy selection is due to pregnancy or maternity leave then the dismissal will be automatically unfair. under the employee s existing contract to continue, then the employer is obliged to offer the employee a suitable alternative vacancy (where one is available) to start immediately after her existing contract ends. The right to be offered suitable alternative work is in preference to the rights of any other employees (even if they are more suitable for the role). The employer should ensure that the work to be done under the new employment contract is suitable and appropriate for the employee and that the other terms and conditions are not substantially less favourable to the employee than those terms under the previous contract. An employee will have a claim for automatic unfair dismissal if the employer does not adhere to this requirement. If the employee refuses a suitable offer, her dismissal for redundancy is likely to be fair. Furthermore, the employee will lose her right to a redundancy payment if she unreasonably refuses the offer. Should you have any questions please contact your usual Pannone contact or: James Lister, Partner, tel or If the employer considers that it is not practicable by reason of redundancy for the employment The material in this guidance note is intended for information purposes only. Although the law referred to is correct at the time of printing, there may have been changes subsequently. Therefore the information within this guidance note should not be applied to any particular set of facts or relied upon without legal or other professional advice. The content of this guidance note is the copyright work of Pannone part of Slater & Gordon and no part of it may be reproduced in any form without the prior permission of Pannone part of Slater & Gordon. Slater & Gordon (UK) LLP is authorised and regulated by the Solicitors Regulation Authority.

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