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Pregnancy can be an exciting time. Each year in the UK, about 360,000 women go on maternity leave and claim maternity pay, so it is vital that you have information about your rights including those to maternity leave and to maternity pay.
What is maternity leave?
Maternity leave is a type of leave that is typically taken shortly before and after giving birth. The purpose of maternity leave is to give new mothers adequate time to give birth, recover, care for, and bond with their new baby before returning to work.
From day one of their employment, all women employees have the right to 52 weeks’ maternity leave, with the right to return to work after the birth, irrespective of whether they work full time or part time. The first 26 weeks of maternity leave is known as Ordinary Maternity Leave (OML). The second 26 weeks of maternity leave is known as Additional Maternity Leave (AML). Only one period of maternity leave, up to 52 weeks, will be available irrespective of whether more than one child, for example twins, results from the pregnancy.
There is no obligation to take all 52 weeks, but a mother must take a minimum of 2 weeks’ maternity leave after her baby is born. If the mother works in a factory, then she must take a minimum of 4 weeks’ maternity leave after her baby is born.
To qualify for maternity leave you must notify your employer by the end of the 15th week before the expected week of childbirth – this is called the Qualifying Week – stating:
- That you are pregnant.
- The expected week of childbirth (EWC).
- The date on which you intend to start your maternity leave.
You are not obliged to let your employer know that you are pregnant until the end of the 15th week before your EWC; however, it would be helpful to do this as early as possible so that your employer can:
- Carry out a health and safety risk assessment.
- Plan your paid time off for antenatal care, which is a statutory right.
- Arrange cover during your absence.
- Plan your return to work.
What is maternity leave pay?
If you are pregnant and working, you are entitled to maternity pay while you are on maternity leave. Most employees, freelancers, agency workers, casual workers and zero hours workers can get some maternity leave and pay. Your maternity leave and pay rights at work depend on your employment status. Your employment status is your legal status at work.
There are three main types of employment status under employment law (Employment Rights Act 1996):
- Worker – You have very little obligation to make yourself available for work, but should do work you have agreed to; your work is less structured or not regular.
- Employee – You are required to work regularly unless you are on leave, you are employed to do the work yourself and cannot refuse to do the work.
- Self-employed – You are responsible for how and when you work and you invoice for your pay instead of getting a wage.
Your employment status should be stated in your employment or service contract or in your written employment terms. It is important to check your employment status, and the difference between being a worker, an employee or being self-employed, so that both you and your employer know their legal rights and responsibilities regarding maternity leave and pay.
Types of maternity leave pay
There are three types of maternity leave pay.
These are known as:
- Statutory Maternity Pay (SMP).
- Occupational, Contractual or Enhanced Maternity Pay.
- Maternity Allowance (MA).
To qualify for SMP, you must:
- Earn on average at least £123 a week.
- Give the correct notice and proof that you are pregnant.
- Have worked for your employer continuously for at least 26 weeks continuing into the ‘qualifying week’, i.e. the 15th week before the expected week of childbirth.
Some employers do offer more generous maternity benefits than the statutory maternity leave and pay. These might be known in your organisation as either Occupational, Contractual or Enhanced Maternity benefits.
Each organisational scheme will be unique to that organisation, so you should check your organisation’s Maternity Policy or speak to HR about your entitlements and any qualification criteria. All organisational Occupational, Contractual or Enhanced Maternity benefits will never offer less than the statutory allowances.
For pregnant women who are working, or have worked recently, but who do not qualify for Statutory Maternity Pay (SMP), the government provides a benefit known as a Maternity Allowance (MA).
You may be eligible for MA if:
- You are employed, but are not eligible for SMP.
- You are registered self-employed and paying Class 2 National Insurance Contributions (NICS), or hold a Small Earnings Exception certificate.
- You have recently been employed or self-employed.
- You are not employed or self-employed, but you regularly take part in the business of your self-employed spouse or civil partner.
You can claim Maternity Allowance as soon as you have been pregnant for 26 weeks. Payments can start up to 11 weeks before your baby is due, and you may be able to get Maternity Allowance for up to 39 weeks; however, this means that if you take the full 52 weeks’ Statutory Maternity Leave, your final 13 weeks’ leave will be unpaid. Any money that you get can affect your other benefits if you are claiming.
How much is maternity leave pay?
Statutory Maternity Pay (SMP) is paid for up to 39 weeks. If you take the full statutory maternity leave allowance then your final 13 weeks’ leave will be unpaid.
- 90% of your average weekly earnings before tax, for the first 6 weeks.
- £156.66 or 90% of your average weekly earnings whichever is lower, for the next 33 weeks.
The rate for 2023/24 for statutory maternity (SMP) increases from the 2022/2023 rate of £156.66 to £172.48 per week and takes effect on 2 April 2023. The minimum weekly amount an individual must earn to be entitled to this payment remains at £123.
Employers are not allowed to make any deductions from Statutory Maternity Pay, apart from tax, National Insurance and a few authorised deductions such as pension contributions or trade union subscriptions. You may be able to defer student loan payments as you will be below the threshold on SMP; however, if your employer is paying enhanced maternity pay then you may have to continue making student loan repayments.
If your employer has a company maternity scheme then you might get more than the statutory amount of maternity leave and pay; your employer cannot offer you less than the statutory amount. You will need to refer to your employer’s Maternity Policy for details of terms and qualifying eligibility.
Maternity Allowance is paid for up to 39 weeks. If you are employed or have recently stopped working then you will get £156.66 per week (rising to £172.48 on 2 April 2023) or 90% of your average weekly earnings, whichever is lower.
If you are self-employed, how much you get depends on how many Class 2 National Insurance contributions you have made in the 66 weeks before your baby is due. You can get between £27 to £156.66 (rising to £172.48 on 2 April 2023) a week for 39 weeks.
If it is your first child, then you may also be eligible to apply for and get a £500 Sure Start Maternity Grant. You must claim the grant within 11 weeks of the baby’s due date or within 6 months after the baby’s birth. You do not have to pay the grant back and it will not affect your other benefits or tax credits.
Other benefits that you may be entitled to whilst on maternity leave include:
- Universal Credit.
- Child Benefit.
- Child Tax Credit.
- Working Tax Credit – This can continue for 39 weeks after you go on maternity leave.
- Income Support – You may get this while you are not working.
Eligibility to these benefits is calculated based on an individual’s particular circumstances.
Who pays for maternity leave?
Maternity pay is paid using a mixture of public funds and employer liability. Employers are responsible for paying Statutory Maternity Pay (SMP) to their employees through their payroll, but they can often reclaim 92% of it back from the HMRC tax authority.
Any Occupational, Contractual or Enhanced Maternity Pay is paid for by your employer through their payroll.
If you are not eligible for SMP but are able to claim the Maternity Allowance, this is paid for through public funds and is paid directly to the claimant via the Department for Work and Pensions (DWP).
Employees’ rights with maternity leave pay
Before taking maternity leave, pregnant employees are entitled to time off with full pay for antenatal (pregnancy-related) appointments. The law does not say how much time you can take off, only that it must be a reasonable amount. Usually, a pregnant employee will need up to ten antenatal appointments if it is a first baby. You must provide an appointment card or other evidence of your appointments should your employer ask for proof.
During your maternity leave you remain employed by your existing employer and you are bound by any terms of your contract. If you decide to leave your job during your maternity leave, then you must give the period of notice required by your contract.
You are entitled to your normal contractual terms and conditions apart from remuneration, that is your wages or salary, during Ordinary and Additional Maternity Leave. This means you are entitled to continue to accrue your normal benefits as if you were at work.
You continue to build up your paid holiday during your maternity leave as if you were still at work. It is up to you to decide when you wish to take your paid holiday and you should agree it with your employer in the usual way. If you cannot take your holiday whilst you are on maternity leave, the employer should allow you to carry over up to 5.6 weeks of unused days into the next holiday year.
You will continue to build up your pension while you are on paid maternity leave, although it will be based on your wage/salary before you went on leave. If you decide to take extra unpaid maternity leave, you won’t build up your pension for that period.
You are also entitled to keep other non-cash contractual benefits during your maternity leave, such as subscriptions, memberships, lunch vouchers and/or a mobile phone and company car that are provided for personal and business use.
Other benefits such as a car allowance are considered to be part of remuneration and are probably not payable. Childcare vouchers are normally provided by salary-sacrifice; they form part of an employee’s pay and an employee is not entitled to them during maternity leave.
Mothers are protected from discrimination under the Equality Act 2010 on the grounds of pregnancy and maternity leave. This protected period ends at the end of maternity leave.
When going on paid maternity leave, you may want to keep up to date with your workplace. For this reason, an employee can work up to ten days during their maternity leave, known as Keeping in Touch days, or KIT days.
These days are optional and must be agreed upon by both the employee and employer. The nature of the work undertaken and the pay that the employee will receive also need to be agreed in advance. The employee’s right to SMP is not affected by working KIT days, although if they work any additional days beyond the ten KIT days, paid maternity leave will be cut for that week.
It should be the employee’s decision about how much contact they want; however, the employer has a duty to keep an employee up to date with any changes in the workplace and the arrangements for their return to work.
Whilst on maternity leave, by law your employer must tell you about:
- Promotion or other job opportunities.
- Any reorganisation that could affect your job.
You are entitled to your normal contractual terms and conditions during maternity leave, including contractual bonuses, and you are entitled to be paid these bonuses during your maternity leave. However, your employer does not have to pay a non-contractual benefit relating to pay, such as a discretionary bonus, during maternity leave.
You are entitled to the benefit of any pay rise that you would have received had you not been on maternity leave. This rise might not be reflected in your maternity pay, as it will depend upon the type of maternity pay that you are receiving. If a pay rise is awarded you should ask your employer to re-calculate your maternity pay.
By law, you cannot be made redundant for taking maternity leave. You can be made redundant during pregnancy or maternity leave, providing it is a genuine redundancy situation and you have not been selected for redundancy because of your pregnancy or maternity leave.
Currently, there is a Bill going through Parliament to enhance redundancy protection for those on maternity leave. This is the Protection from Redundancy (Pregnancy and Family Leave) Bill, but as yet this has not been passed into law.
When does maternity leave pay start and end?
In most cases, the earliest that you can start your maternity leave is 11 weeks before the week your baby is due. The latest that maternity leave can start is the day following the birth. If the baby arrives early, then your maternity leave will start the day after the birth.
If you are off work for pregnancy-related illness in the four weeks before your baby is due, your maternity leave will begin automatically. Periods of pregnancy-related sickness absence from the start of your pregnancy until the end of your maternity leave should be recorded separately from other sickness records and should be disregarded in any future employment-related decisions.
If the baby is late and you gave your employer a specific date that you wanted maternity leave to start, they can still start the leave from that date. You will, however, need to tell your employer the date that you give birth, so that they can start your compulsory maternity leave (2 weeks) from then.
In the unfortunate case of a pregnant women suffering a miscarriage up to the 24th week of pregnancy, she will not qualify for either maternity leave or pay. Any time off taken in these circumstances will fall under the employer’s sick leave policy.
A woman having a stillbirth after the 24th week of pregnancy or giving birth prematurely to a living child after the 24th week of pregnancy where the baby later dies, will be entitled to maternity leave in the usual way.
You can change the date you go back to work at any point in your maternity leave; however, you need to give your employer at least 8 weeks’ notice.
If you become pregnant while on maternity leave, you are entitled to another 52 weeks’ maternity leave.
By law, you cannot start your next maternity leave until the 11th week before your baby is due, so if your first maternity leave ends before that point, you will need to either:
- Return to work until at least the 11th week before the baby is due; or
- See if you can stay off work by taking another type of leave such as holiday leave – It is up to your employer to decide if you can do this and you must give your employer the correct notice.
Once your maternity leave has ended, your right to return to the same job depends on how much leave you have taken. If you have taken up to 26 weeks’ maternity leave, then you have the right to return to the same job.
If you have taken more than 26 weeks’ maternity leave, then you have the right to return to the same job unless your employer has a genuine reason to offer you an alternative. If there is no alternative but to offer you a different job, the job must be suitable, appropriate and on the same terms.
For example, it must have the same:
- Holiday leave and pay.
Does the employee have to pay any maternity leave pay back?
If an employee does not return to work after maternity leave, they might have to repay maternity pay; this depends on the type of maternity pay and what their contract says. The employee does not need to repay any Statutory Maternity Pay they have taken.
The employee must repay some or all of their Occupational, Contractual or Enhanced Maternity Pay if the written terms of their employment say so; the written terms must be clear about the circumstances if this money does need to be repaid.
What is shared parental leave?
Shared parental leave allows mothers to end maternity leave/pay early so that one or both parents can take leave in a more flexible way during the baby’s first year. The mother must still take a minimum of 2 weeks’ maternity leave but can elect to share the remainder of maternity leave with their partner.
Eligible parents can get:
- Up to 50 weeks of shared parental leave.
- Up to 37 weeks of shared parental pay (SHPP).
Parents can take time off at the same time or separately. You can take shared parental leave if you are the mother, father or the mother’s spouse or partner, including civil partners and same sex partners. If you take shared parental leave you will get statutory shared parental pay.
Anyone who is concerned about their rights and responsibilities at work during pregnancy and maternity leave should in the first instance speak to their employer. There are a number of organisations that can provide support services and who offer advice.