Your maternity rights.

Maternity RightsCongratulations you’re expecting a new baby!  But have you considered your maternity rights? Jane Reynolds HR manager makes sense of the current legislation. This article only covers the minimum statutory entitlements to maternity leave and pay.  Your employer may have more generous policies.

Antenatal Care. All pregnant employees are entitled to paid time off for antenatal care (recommended by a doctor or midwife) regardless of how long you have worked for your employer.  Your employer may ask for proof of appointments.

Maternity Leave, (Ordinary Maternity Leave).  Current UK law states that all pregnant employees are entitled to 26 weeks’ ordinary maternity leave, regardless of how long you have worked for your employer.

Your contract of employment will continue to apply during your ordinary maternity leave.  You should continue to receive all your contractual benefits except for the payment of normal salary.

You will continue to accrue paid annual leave during ordinary maternity leave – usually specified in your employment contract.

You can add annual leave to the beginning or end of your maternity leave.  You may not be able to carry over untaken annual leave entitlement if your maternity leave spans two holiday years so it’s best to check these terms with your employer.

If you qualify for statutory maternity pay you will receive this during your ordinary maternity leave.

Additional Maternity Leave.  If you have worked continuously for 26 weeks or more with your employer (by the beginning of your 14th week before your expected week of childbirth “EWC”) you are entitled to an additional 26 weeks’ additional maternity leave.

Your contract of employment will continue to apply during your additional maternity leave.  Some terms and conditions will apply (e.g. implied term of trust and confidence).  Others maybe suspended (e.g. pension contributions).  Check with your employer for which terms and conditions apply. 

Unless your contract says differently, you will accrue only the statutory minimum (4 weeks) annual leave entitlement during your additional maternity leave.

You are not entitled to receive your normal salary during additional maternity leave and statutory maternity pay is not paid during additional maternity leave.

Additional maternity leave continues on from the end of ordinary maternity leave, without a break.  Therefore, the maximum length of maternity leave available (if you qualify for additional maternity leave) is 52 weeks.
Entitlements to ordinary and additional maternity leave apply whether you work full or part time.

Statutory Maternity Pay.  If you meet the qualifying conditions you are entitled to receive 26 weeks’ statutory maternity pay from your employer.  This is paid for 6 weeks at 90% of your average weekly earnings, followed by 20 weeks at a flat rate set by the government, currently £108.85 per week (or 90% of your average weekly earnings if you earn less than the flat rate). 

The qualifying conditions are:

  • You must be an employee;
  • You must have worked continuously for 26 weeks or more with your employer by the qualifying week (the 15th week before your EWC);
  • Your average weekly earnings in the 8 weeks up to and including the qualifying week must be at least the lower earnings limit for National Insurance ”NI”  contributions.

If you do not qualify for statutory maternity pay you may qualify for statutory maternity allowance, payable by JobCentre Plus.

Telling Your Employer.  To qualify for maternity leave you must notify your employer by the end of the 15th week before your EWC that you are taking maternity leave.  You should tell your employer:

  • That you are pregnant:
  • The week your baby is expected to be born;
  • When you want your maternity leave to start

You can change your mind about the maternity leave start date, but you need to give your employer 28 days’ notice of your new start date.

Your doctor or midwife should give you a maternity certificate (MATB1) about 14-20 weeks before your EWC - confirming the expected date of the birth of your baby.  When you receive your MATB1 you should give this to your employer.

The earliest date you can start your maternity leave is the 11th week before your baby is due.  If you are absent from work with a pregnancy-related illness during the 4 weeks before the start of your EWC your maternity leave will start automatically.

Your employer should write to you within 28 days’ of your notification setting out the date you are expected to return to work after your maternity leave.

Early Birth.  If your baby is born before you intend to start your maternity leave, your maternity leave and pay (if you qualify for maternity pay) will start the day after your baby’s birth

Miscarriage or Stillbirth.  If you suffer a miscarriage or stillbirth anytime from the beginning of the 25th week into your pregnancy you should still be entitled to maternity leave and maternity pay (if eligible).

Returning to Work.  Employers assume that you will take your full maternity leave entitlement (either 26 or 52 weeks’ leave) and then return to work.  If you take your full entitlement you do not need to give notice that you are returning to work – but clearly it’s good practice to do so.

If you want to return to work sooner you must give your employer at least 28 days’ notice of your new return date.  Your employer may postpone your return to the end of your maternity leave.

Following the birth of your baby, you must take at least 2 weeks’ compulsory maternity leave (4 weeks if you work in a factory) and your employer cannot permit you to return to work during this period. 

If you return to work following ordinary maternity leave you are entitled to return to the same job and same terms and conditions you had before going on maternity leave.

If you take additional maternity leave and return to work you are entitled to return to the same job and terms and conditions you had before going on maternity leave – unless your employer shows it’s not reasonably practicable to return you to your original job (e.g. the job no longer exists).  In this case you should be offered an alternative job with equivalent terms and conditions to your previous job.

Should you wish to return to work on a part-time or basis other than your usual contractual basis you maybe able to apply to your employer for Flexible Working and to have your request seriously considered.  You do not have a right to flexible working, but you have the right to request it.

Returning to Work whilst Breastfeeding.  As well as undertaking a risk assessment (see below) if you return to work whilst breastfeeding and need to express milk at work your employer should provide suitable facilities to allow you to do so, as well as somewhere to store the milk.

Your employer should undertake a risk assessment of your job and working environment and remove or reduce any risks:

  • When you notify him/her you are pregnant;
  • If you return to work within 6 months of giving birth;
  • If you return to work whilst breastfeeding

You should notify your employer in writing as soon as possible if you fall within any of the above categories. 

Pay Rises.  If you were entitled to receive a pay rise (had you not been on maternity leave) you will be entitled to receive this on your return to work – back dated to the date you would have received it (had you not been on maternity leave).  For example, if you receive an annual pay rise and you are on maternity leave at the time it’s usually paid, you should receive this when you return to work – back dated to the date it’s usually paid.

Bonuses.  The question of bonuses is a complicated one.  It is not always clear whether or not bonuses are included in the definition of ‘remuneration’ – e.g. during ordinary maternity leave all contractual rights continue except remuneration.  During additional maternity leave only certain rights continue, so there maybe more flexibility in terms of whether or bonuses are covered.

A regular Christmas or other annual bonus not linked to your performance is unlikely to be considered as salary or defined as remuneration.  Therefore this type of bonus should normally be paid in full if it falls within your ordinary maternity leave period. 

Performance related bonus.  It would seem reasonable that your employer pay at least a proportion of any performance related bonus or commission relating to the time you were actually at work during that payment year, before you went on maternity leave.

For example, if you were at work for half the year and on maternity leave for the remaining half, then half of any performance related bonus should be paid to you.

A lot of bonus schemes state that you should be in employment on a certain date to receive a bonus.  Clearly, if you are on maternity leave you are still an employee and should be entitled to receive a bonus.  Failure by your employer to pay you a bonus in this circumstance could amount to sex discrimination.

Leaving Work.  If you do not intend to return to work, you must give your employer notice in the normal way – usualy specified in your employment contract.

New Laws

The draft Maternity and Parental Leave (Amendment) Regulations 2006 is proposing to change some aspects of UK maternity legislation.  From April 2007 ordinary maternity leave is proposed to increase from 26 to 39 weeks.  Therefore, statutory maternity pay is also proposed to rise to 39 weeks from April 2007.

From April 2007 it is proposed that you will have to give 2 months’ notice if you want to change the date you are returning to work after your maternity leave.

Also under consideration is that all female employees, regardless of length of service will qualify for additional maternity leave.  The different rights applicable during ordinary and additional maternity leave and upon returning to work after these different periods of leave are likely to be retained.

Additionally, it is proposed that you and your employer will be able to agree for you to return work for a limited number of days during your maternity leave period, without bringing your maternity leave to an end or losing your right to maternity pay.  Under current proposals ‘work’ can include training and/or other activities to enable you to ‘keep in touch’ with your employer and your workplace.

Summary of the current proposals
Extension of statutory maternity paid leave from six to nine months for employees with an EWC on or after 1 April 2007.

  • Removal of qualifying criteria for Additional Maternity Leave so all mothers can take up to one year off work.
  • Increase in the notice period employees give to change their return date, from 28 days to 8 weeks.
  • Optional 'keeping in touch days' to give employees the chance to work, undertake training and keep updated on major developments without losing the right to maternity pay.
  • Employers to be entitled to make reasonable contact with employees during maternity leave.
  • Any day start for Maternity Pay to align the leave start date with the pay start date.

Finally.

As previously stated this article only covers the minimum statutory entitlements to maternity leave and pay.  Your employer may have more generous policies.
Read your employer’s maternity leave policy and speak to your Human Resources department.  Further information is available from the Department of Trade and Industry and if you want legal advice speak to an independent legal advisor such as the Citizens Advice Bureau or a solicitor. 

Useful websites include: www.tiger.gov.uk, www.dwp.gov.uk, www.dti.gov.uk


Jane Reynolds
H R Manager,CIPD