When an employee becomes pregnant or is about to give birth, there are several legal requirements you need to meet.
Maternity leave is an entitlement which helps an expectant employee in more ways than you might think.
Failing to provide legal maternity leave rights can cause unlawful discrimination and unfair dismissal. Here, you could end up facing tribunal claims, compensation penalties, and even business disruption.
In this guide, we'll look at what maternity leave is, how long employees can take, and ways to help them throughout their leave period.
What is maternity leave?
Maternity leave is an authorised absence for an employee who is expecting a baby or is due to give birth. It's one of a few leave methods listed with shared parental leave.
This leave generally lasts up to 52 weeks, but employees don't have to take it all at once. They can choose to take 26 weeks off at the beginning of their pregnancy, or during the last 26 weeks after the baby is born.
Statutory maternity leave is split into two parts: ordinary and additional maternity leave.
Ordinary maternity leave
Ordinary maternity leave refers to the first six months (or 26 weeks) of the employee's pregnancy period. If an employee decides to return to work after their due-date, they are legally entitled to the exact same job they had before.
Additional maternity leave
Additional maternity leave refers to the second six months (or 26 weeks) of an employee's pregnancy period. Again, during this time, employees are legally entitled to their job position when they return to work.
However, this doesn’t fully apply if the job no longer exists or is not available. In this case, the employee must be given a similar role with the same salary and working conditions.
When does maternity leave start?
A pregnant employee is generally allowed to start their 52 weeks' of maternity leave at any given time. However, they are obligated to take two weeks' leave after their due-date. (Or four weeks if they work in a factory).
In normal circumstances, they can take their leave through the following states:
- Maternity leave can start as early as 11 weeks before the baby's due-date.
- Maternity leave can start the day after the birth (if the baby is early).
- Maternity leave can start automatically if they are off-work because of a pregnancy-related illness. (This must be in the four weeks before the baby is due).
Who is able to claim maternity leave?
There are certain legal requirements which state who is able to claim maternity leave. For example:
- The person must have an employment contract.
- The person cannot class as a worker.
To qualify for statutory maternity leave, employees don't need to consider service length, working hours, or wage amounts.
Employees will not receive statutory maternity leave if they have a child through surrogacy. Here, you'll need to apply for statutory adoption leave and pay instead.
UK laws on pregnancy and maternity rights
Under UK law, there are certain employee benefits which pregnant and new parents are eligible for.
Pregnancy and maternity discrimination are illegal under UK employment laws. Under the Equality Act 2010, you cannot discriminate against an employee because they’re pregnant or have given birth.
Pregnancy and maternity class as one of nine characteristics protected against unfair treatment.
Legal rules on maternity discrimination revolve around the term 'protected period'. These regulations outline the right to equality, justice, and protection against maternity discrimination during this time.
Remember, maternity leave and pay is a legal right for those in same-sex and mixed-sex relationships.
Employment rights after the baby is born
In some cases, you might choose to fill the role of an employee who's on maternity leave.
You legally can fill an employee’s role in their absence, but you cannot deny them their role on their return.
Here, employees may raise a constructive or unfair dismissal claim because of this. Most unfair dismissal claims are challenged at an employment tribunal, where you could end up paying compensation penalties and business damages.
So, it's important not to deny their employment rights, benefits, or wages during this time. It's also crucial that you don’t pay them less than someone else in the same job.
Employees can still receive statutory maternity leave and pay, even if the baby dies upon delivery. They’re also legally entitled to maternity rights if they suffer from a stillbirth at the start of their 24 weeks of pregnancy.
What is statutory maternity pay?
Statutory maternity pay (SMP) is a financial payment provided to anyone on maternity leave.
To qualify for paid maternity leave, employees needs to:
- Earn at least £123 per week.
- Give as much notice as reasonably possible.
- Provide medical proof for their pregnancy.
- Have completed at least 23 weeks' of continuous service into the 'qualifying week'. (This is the 15th week before the expected week when the baby is due).
Statutory maternity pay starts when the employee decides to take maternity leave. It also starts if they're on sick leave because of a pregnancy-related illness. (Same as the leave requirements, this must take place four weeks before the baby is born).
How much statutory maternity pay will employees receive?
Statutory maternity pay is payable for up to 39 weeks for eligible employees. Businesses offer maternity pay through the following conditions:
- For the first six weeks: 90% of their average weekly earnings (before tax).
- For the next 33 weeks: 90% or £156.66 of their average weekly earnings (whichever one is lower).
- For the next 13 weeks: This period is unpaid unless you choose to provide financial aid.
Statutory maternity pay is provided in the same way as wages (weekly or monthly). And the legal minimum amount will vary depending on individual circumstances. An employee's full amount is directly calculated based on their 'average weekly earnings'.
Statutory maternity pay is also subject to tax credits, like national insurance and pension contributions.
What is enhanced maternity pay?
Enhanced maternity pay is a financial payment that's higher than the statutory legal amount given to employees on maternity leave. It's also known as occupational or contractual maternity pay.
Employers offer a higher maternity grant which is normally outlined through employment terms. But whatever they provide, it cannot be less than the legal minimum amount.
In these cases, offering an enhanced amount can be beneficial for the employer. You'll be able to fully support your staff whilst they're on leave. Employees will feel fully valued and financially secure during this time.
But, if an employee decides not to return to work after 52 weeks, you could ask for additional payment to be returned.
How to manage maternity leave in the workplace
As pregnant employees class as vulnerable workers, you need to ensure their safety and welfare well before their expected week. This means applying the best workplace practices– from the moment they announce their pregnancy, to their due-date.
By doing so, you'll be able to retain your employees, keep them motivated, and ensure the best outcome for both sides.
Here are ways to manage maternity leave in the workplace:
Allow pregnancy-related leave
All employers must make sure they are given paid time off for pregnancy-related matters. For example, attending antenatal appointments or keeping up with general health check-ups.
This leave must not be treated in the same way as sick leave or annual leave. You cannot discriminate against employees for taking them. If you do, you could end up facing discrimination claims raised against you.
Caring for pregnant employees
When dealing with pregnant employees, one of the most important factors to remember is their health, safety, and welfare.
Once an employee has mentioned that they are pregnant, you need to take further steps in ensuring their security. These steps can include conducting pregnancy risk assessments, providing reasonable adjustments, and informing your HR department.
Be prepared to change up any one of these factors as weeks go by. And make sure their working environment is secure and hazard-free for them.
Dealing with pregnancy-related sickness
Pregnancies come with so many changes on a daily basis. And one of the most common ones is normally health-related.
Understandably, no one's pregnancy is the same. Each individual will experience their own whirlwind of sickness and ill-health.
When they do, be empathetic with their state. For example, pregnant employees will have a higher level of sickness-related leave compared to their colleagues. So, avoid actioning warnings or disciplinaries when it comes to sickness absences.
Maintain employment benefits
Despite being on leave, employees are still entitled to benefits they'd normally get during work. They still class as ‘employees’ under employment law and must be given legal entitlements.
This includes things like:
- Pay rise.
- Accrued annual leave.
- Return to work.
- Protection against discrimination.
- Be informed of workplace changes.
They could be eligible for more support due to low income during this time. This can include things like working tax credit, like universal credit, or income support allowance.
Offer 'keep in touch' days
At times, employees can work for up to 10 days without it affecting their statutory maternity pay or leave rights. These are called 'keep in touch' (KIT) days.
It's a good way to encourage communication and development during their time off. Employees will feel connected and comfortable when returning to work.
You can't split the hours of one KIT Day–it needs to be taken per working day. There is no legal obligation to pay employees during a KIT day either. However, it's common for them to receive their same rate in the usual way.
Helping employees return to work after maternity leave
In normal circumstances, most pregnant employees will generally take the whole 52 weeks' of statutory maternity leave.
Whilst on leave, try to establish whether the employee still wants to return to work after giving birth. Their circumstances might have changed, so it's best to re-establish what they'd like to do in the present time.
You can help them return with ease by making changes to their conditions and environment. At this point, employees need to confirm their return no less than eight weeks before their return date.
If an employee wants to finish maternity leave early, they need to give at least eight weeks' notice.
Remember, employees have a legal right to return to their old job. And this is regardless of whether you've fulfilled their role during their time off. So either offer their exact role with the same employer or one with similar circumstances.
What if employees don't want to return after maternity leave?
If an employee decides not to return to their job after maternity leave, there are some steps to consider.
You can offer ways to make their job more suitable to their current state. For example, offering flexible working or childcare services.
If they are adamant on not returning after their leave, you may decide on dismissal. This should only be done as a last resort and through the proper steps.
It's important to establish mutual consent for the termination of a job role. Employees need to give as much notice as possible before their expected week of return.
Remember, they’re still entitled for statutory maternity pay during their maternity leave period, even though their contract is being terminated.
Can employees take shared parental leave and maternity leave?
In some cases, employees might decide to apply for shared parental leave around the same time as maternity leave. It provides the expectant employee with more support, allowing both parents to raise their new baby together.
Shared parental leave can include similar rights to maternity or paternity leave. To be eligible for shared parental leave, an employee needs to:
- Have full responsibility for raising the baby.
- Be either/both the biological father of the baby and/or the mother's husband/civil partner.
Shared parental leave is a legal right which applies to those in same-sex and mixed-sex relationships. Employees might also be eligible for statutory adoption pay, along with benefits like income support and child tax credit.
Are part-time employees eligible for maternity leave?
If a person legally stands as an employee, they are eligible for maternity leave–regardless of whether they work full or part-time.
It doesn't matter if they're on a zero-hours contract or class as agency workers. Part-time employees are entitled to several family-related leave.
Some of the most common ones include:
- Additional maternity leave.
- Paternity leave.
- Adoption leave.
- Shared parental leave.
- Parental bereavement leave.
- Maternity allowance.
Maternity allowance (MA) is a financial benefit available to those who class as part-time employees. This payment was made for those who don't qualify for statutory maternity pay.
To claim maternity allowance, employees need to apply for it 15 weeks before the baby is born.
Eligible employees who apply for maternity allowance will receive £156.66 per week for 39 weeks. Or are given 90% of their average earnings if it's less than the amount above.
However, it's up to the employer to decide whether to provide them with statutory maternity pay or maternity allowance.
Get expert guidance on maternity leave with Peninsula
From the moment their pregnancy is announced to their due-date, you have a legal duty to protect employees who are expecting a baby.
Neglecting their safety rights or financial entitlements means you could end up losing talented employees. And any form of unfavourable treatment can result in court hearings, compensation payments, and business losses.
Peninsula offers expert guidance on maternity leave. Our team offers 24/7 health & safety advice which is available 365 days a year. Our HR department also provides advice through multi-lingual support and fully trained counsellors who are ready to help with any personal injury claims.
Want to find out more? Book a free chat with one of our HR consultants. For further information, call 0800 028 2420.
