With over 70% of the UK female population in some form of paid employment, and 774,00 live births in 2017 alone, it is inevitable that most businesses will face discussions around maternity leave, rights and pay.
For SME’s, dealing with maternity leave can often be daunting, but having a firm grasp of UK law and the legislative requirements that businesses must abide by can often help to quell any misplaced fears.
What is maternity leave?
In a nutshell, maternity leave refers to the time taken away from work by an individual who has had a baby. Pregnant employees are legally entitled to take 52 weeks of Statutory Maternity Leave if they provide the correct notice to their employer, but do not have to take the full 52 weeks if they do not want to.
The legal minimum that must be taken is two weeks if an employee works in an office environment, or four weeks if they work in factory or equivalent manual occupation.
The 52 weeks of Statutory Maternity Leave is made up of:
- Ordinary Maternity Leave – the first 26 weeks
- Additional Maternity leave – the last 26 weeks
Employees have a legal right to take up to a year of a maternity leave, regardless of how long they may have worked for you, how much they are paid, or how many hours a week they work.
Who can take maternity leave?
Workers are entitled to maternity leave if they are an ‘employee’ (e.g. someone that works regular hours on a fixed contract).
They are not entitled to maternity leave if they are a ‘worker.’ They are usually classified as a worker if they:
- Work for an agency – unless they have an agreement stating that they are employed by the agency
- Are a casual worker
- Are employed on a zero hours contract
By law, everyone must take the minimum of two or four weeks off work after having a baby, even if they are not entitled to maternity leave. They may still be entitled to statutory maternity pay or Maternity Allowance, even if they are not entitled to maternity leave.
When should an employer be notified?
Whilst there is no minimum length of service required to take maternity leave, a pregnant employee must inform you of their pregnancy at least 15 weeks before the baby is due. This includes telling you:
- That they are pregnant (with medical proof)
- When the expected week of childbirth is (an employer can request a medical certificate that confirms this)
- The date that they intend to start maternity leave. This can normally be any date which is no earlier than the beginning of the 11th week before the baby is due.
The employee must give this notification in writing if you request it.
If the employee wants to change the start date of their maternity leave, they must provide you with 28 days’ notice, or else you must mutually agree a new date.
After receiving confirmation that the employee is pregnant, you must write to them within 28 days, setting out a date to return to work. At this point, you should assume that employee is going to take the full 52 weeks’ leave.
If, in the four weeks before baby is due, the employee is off work with a pregnancy-related illness, their maternity leave will automatically begin on the following day.
Are pregnant employees entitled to time off?
All pregnant employees are entitled to reasonable time off; with pay; for any antenatal appointments made on the advice of a registered medical practitioner. This may include relaxation classes and parent-craft classes. After the first appointment, you may ask them to provide an appointment card or other documents that show an appointment has been made.
An expectant father or partner of a pregnant woman also has the right to take time off work to go to two antenatal appointments. This time off is usually unpaid, and is limited to six and a half hours per appointment.
What health and safety considerations should employers be aware of?
As an employer, you must legally consider any specific workplace risks via your general risk assessment for an employee who:
- Is of childbearing age, or
- Is pregnant
- Has given birth in the last six months
- Is breastfeeding
Examples of risks to consider include:
- Heavy lifting or carrying
- Long working hours
- Standing or sitting for long periods without adequate breaks
- Exposure to toxic substances
If you are told in writing of an employee’s pregnancy, you should then have regular health and safety discussions with them, taking into account any advice they have received from their doctor or midwife. If any risks identified cannot be reduced or removed you must:
- Temporarily adjust working conditions and/or working hours, and if that is not possible:
- Offer suitable alternative work (at the same rate of pay, and on terms no less favourable than the original role).
If neither of these options are possible, then you must suspend the employee from work on fully paid leave until their maternity leave begins, or else it is safe for them to attend work. Your employee must be provided with the outcome of the risk assessment, and the reason why the risk could not be removed.
What about pregnancy illness?
If you have an employee who is unable to attend work due to a pregnancy-related illness, they should report in sick in the usual way. You should record these absences, but ensure that you keep them separate to any other sickness absences. Pregnancy-related absence must not count towards any review points or trigger points that you may have in your wider workplace absence policy.
There is no automatic right to be paid in full for a pregnancy-related absence. You should follow whatever your standard workplace sickness guide advises on payment, regardless if your employee is pregnant or not…e.g. if you only provide Statutory Sick Pay, then this is what must be paid.
How is maternity pay calculated?
A pregnant worker will usually be entitled to either:
- Statutory maternity pay
- Contractual maternity pay
- Maternity allowance
Statutory maternity pay (SMP) will be payable if a worker has been:
- Working continuously for one company for at least 26 weeks, ending with the 15th week before the expected week of childbirth.
- Has average weekly earnings at least equal to the lower earnings limit for National Insurance contributions.
SMP is payable for 39 weeks. For the first six week, it is paid at 90 percent of the employee’s average weekly earnings. The following 33 weeks will be paid at the SMP rate, or 90 per cent of the average weekly earnings, whichever is the lower.
Since April 2018, the rate for SMP has stood at £145.18 per week. The amount is reviewed every April in line with the Budget.
Contractual maternity pay is sometimes offered by employers, and is more than the statutory rate. The amount, and how long it is available for is dependent upon the contract of employment. For example, it could be 26 weeks of full pay, followed by 13 weeks of SMP. Contractual maternity pay cannot be any less than statutory maternity pay.
If you offer contractual maternity pay, you could include provision in the employee’s contract for repaying some or all of the enhanced maternity pay if the employee does not return to work after maternity leave. This should be clearly set out in writing in the terms and conditions of employment. An employee should not have to repay any money that would amount to any statutory maternity pay they receive.
Maternity Allowance is usually payable if a pregnant mother does not qualify for statutory or contractual maternity pay. This is paid by Jobcentre Plus for up to 39 weeks. To qualify, the employee must have been employed or self-employed for 26 weeks out of the 66 weeks before the expected week of childbirth. A claim can be made for maternity allowance once the mother has reached 26 weeks of pregnancy, although payments cannot begin until 11 weeks before the baby is due.