Maternity leave and pay

This guide will help you comply with the laws on statutory maternity leave and pay.
All pregnant employees are:

• entitled to take 52 weeks’ statutory maternity leave (SML) around the birth of their child
• protected from suffering detriment or dismissal for taking SML
• entitled to benefit from her existing terms and conditions, except those relating to wages or salary, during SML.

---

---

The right to maternity leave

All pregnant employees, ie those working under a contract of employment, are entitled to take up to 52 weeks’ statutory maternity leave (SML) around the birth of their child. Employees automatically qualify for SML – it does not matter how long the employee has worked for you.

The 52 week SML period is made up of 26 weeks’ ordinary maternity leave (OML) followed immediately by 26 weeks’ additional maternity leave (AML).

Compulsory maternity leave

An employee must take a minimum of two weeks’ leave after the birth of her child – or four weeks if she works in a factory. You must not allow her to work during this time.

Multiple births

SML remains at 52 weeks regardless of the number of children resulting from a single pregnancy.

Stillbirth and miscarriage

If your employee gives birth to a stillborn baby, she is still entitled to maternity leave if the birth happens after 24 weeks of pregnancy.

If a stillbirth or miscarriage occurs before the end of the 24th week of pregnancy, you could allow the employee to take sick or compassionate leave instead.

When a baby dies

If the baby is born alive at any point in the pregnancy but then later dies, the employee is still entitled to SML.

Enhanced maternity leave

You can also provide enhanced maternity leave arrangements to attract and retain employees.
 
For example, you could allow employees with more than a year’s service to take more than 52 weeks’ leave.

You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis.

---

Notification and confirmation of maternity leave

Employees should tell you the following information no later than the end of the 15th week before the expected week of childbirth (EWC):

• The fact that she is pregnant.
• The expected date of the baby’s birth.
• The intended start date of her maternity leave – this cannot be earlier than the beginning of the 11th week before the EWC. The expected date of birth is given on the MATB1 form that the employee receives from her registered doctor or midwife to confirm that she is pregnant. An employee can change the start date of her leave – see the page in this guide on when maternity leave can begin.

The EWC is the week in which the expected date of the baby’s birth falls – starting with the preceding Sunday and ending the following Saturday – this is also known as the ‘qualifying week’. If the baby is born on a Sunday, that date is the first day in the EWC.

You may request notification of statutory maternity leave (SML) in writing.

SML entitlement if the 15 week deadline is missed

A woman who realises she is pregnant later than 15 weeks before the EWC week is still entitled to SML. In this event, the employee is expected to tell you the information above as soon as possible after the 15 week deadline.

SML notification and claiming statutory maternity pay (SMP)

The start date for SMP is normally the same as the start date for SML. Therefore, many employees will find it convenient to notify you of the start date of their SMP at the same time as they notify you of the start date of their SML.

If the employee plans to take SML, she only needs to provide you with a MATB1 form so you can work out whether she qualifies for SMP. If she does not qualify, you must return the MATB1 form to her because she will need it to claim Maternity Allowance.

See the page in this guide on maternity pay.

Failure to give the required notification

If an employee doesn’t give you the required notification, you can postpone the date she has chosen to start her SML.

You do not have to accept shorter notice but you may have to make an exception where it was not reasonably practicable for the employee to give you notice any earlier.

For example, the employee may not be able to notify you properly if her baby is born much earlier than expected, eg well before the qualifying week. In these circumstances, she still qualifies for 52 weeks’ SML. See the page in this guide on when maternity leave can begin.

Encouraging early notification

It benefits both you and the employee if she notifies you well in advance of the 11th week before the EWC as you:

• know she is entitled to paid time off for antenatal care – see our guide on pregnancy at work
• know that particular health and safety rules apply – see our guide on pregnancy at work
• can start making arrangements to cover the period while the employee is away

Confirming the end date of SML

After receiving her notification, you must in turn notify the employee of the date on which her SML will end. This will normally be 52 weeks from the intended start of her SML. Download our model maternity leave acknowledgment letter [opens in a new window].

You must give the employee this information within 28 days of her notification, unless the employee has since changed the date her leave will start. In that case, you must notify her of the end date within 28 days of the start of her leave.

If you fail to give the employee proper notification and she wants to change her return date, she won’t have to give you the normal eight weeks’ notice of that change – see the page in this guide on changing a return date.

---

When maternity leave can begin

An employee can choose to begin her statutory maternity leave (SML) any time from 11 weeks before the expected week of childbirth (EWC) up until the birth itself.

For the rules on notification for SML, see the page in this guide on notification and confirmation of maternity leave.

Pregnancy-related absence

An employee can choose when to start her maternity leave. The exception is if she is absent from work for a pregnancy-related reason and the absence is after the beginning of the fourth week before the EWC – but before the date she notified you that she intended to start her leave. In this case you can start the maternity leave as soon as she is absent.

In these circumstances, her SML will begin the day after the first day of her pregnancy-related absence.

You should treat as normal:

• any non-pregnancy-related sickness absence after the beginning of the fourth week before the EWC
• any sickness absence before the fourth week before the EWC

Pregnant employees are entitled to paid time off for antenatal care – see our guide on pregnancy at work.

Childbirth before maternity leave has begun

SML also begins on the day after the day of childbirth if the birth occurs before:

• the notified SML start date
• the employee has notified you of any SML start date

This applies even if the birth takes place before the start of the 11th week before the EWC. In these circumstances, the employee should give you notice – in writing if you request it – of:

• the date of the birth if it has already taken place
• the original expected date of birth

The employee can provide you with evidence of the actual and expected dates of birth on the maternity certificate (MATB1) provided by her doctor or midwife.

Changing the start date of SML

After giving you her notification, the employee can change her intended start date as long as she notifies you of the new start date. She must do this by whichever is the earlier of:

• 28 days before the date she originally intended to start her leave
• 28 days before the new date she wants to start her leave

However, if it is not reasonably practicable for her to give you this much notice, she does not have to. In these circumstances she should give you as much notice as possible. You may request this notification in writing.

---

Terms and conditions during maternity leave

An employee’s contract of employment continues throughout her 52 weeks of Statutory Maternity Leave (SML) unless either you or the employee expressly ends it or it expires.

During SML an employee has a statutory right to continue to benefit from all the terms and conditions of her employment that would have applied to her had she been at work.

The only exceptions are terms relating to wages or salary – though you must pay her statutory maternity pay if she’s eligible. See the page in this guide on maternity pay.

Examples of contractual terms and conditions that continue during SML include:

• gym membership
• participation in share schemes
• reimbursement of professional subscriptions
• the use of a company car or mobile phone (unless provided for business use only)
• childcare vouchers
• contractual annual leave

Whether or not you should pay a bonus to an employee on SML depends on the type of bonus and the terms of the particular bonus scheme.

An employee on SML may receive contractual pay if she works on a keeping-in-touch day – see the page in this guide on contact and work during maternity leave.

Continuous employment, length of service and maternity leave

SML doesn’t break continuity of employment.

This means the entire SML period counts towards an employee’s period of continuous employment when determining eligibility for other statutory employment rights, eg the right to a redundancy payment.

For employees who have had or are due to have a baby, where the expected week of childbirth (EWC) began or will begin on or after 5 October 2008 both ordinary maternity leave and annual maternity leave count for assessing seniority and personal length-of-service payments, such as pay increments, under their contracts of employment.

However, for employees who have had a baby where the EWC began before 5 October 2008, you only have to count the period for those births.

Therefore, when assessing length of service for a pay rise for example, it’s possible that an employee who has given birth twice or more while in your employment could have a later period count towards her length of service but not an earlier one.

---

Holiday and pensions during maternity leave

During statutory maternity leave (SML), an employee continues to accrue annual leave.

She will also continue to benefit from any occupational pension scheme (OPS) contributions for some of the SML period.

Accrual of annual leave

An employee continues to accrue both their full statutory annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout.

An employee may not take annual leave during SML. You should instead allow the employee to take any untaken annual leave before and/or after her SML.

You cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.

An employee’s SML begins automatically if she gives birth during a period of annual leave – see the page in this guide: when maternity leave can begin.

For more information on annual leave entitlements, see our guide: know how much holiday to give your staff.

Contributions to an OPS

You should calculate the contribution to an OPS as if the employee is working normally.

During any period that your employee is on additional maternity leave (AML) but not receiving any maternity pay – eg during the last 13 weeks of AML – you do not have to make any employer contributions to an OPS unless the contract of employment provides otherwise.

If the OPS rules require employee contributions to continue during maternity leave, her contributions should be based on the amount of statutory and/or enhanced maternity pay she is receiving.

Employee contributions will therefore stop during any period of unpaid maternity leave – eg during the last 13 weeks of AML – but the OPS rules may allow her to still make voluntary contributions.

---

Contact and work during maternity leave

During the statutory maternity leave (SML) period you can make reasonable contact with an employee – and she may make contact with you.

In addition, an employee can work as a way of keeping in touch with workplace developments.

Contact with employees on SML

You can make contact with the employee by any means, eg telephone, email, letter, a meeting in the workplace.

The frequency and nature of any contact with them will depend on things like:

• the type of work and the employee’s post
• any agreement that you might have reached with the employee before their leave began
• whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on her return

The amount of contact that is reasonable depends on whether the employee prefers to have frequent or minimal contact with you. It is a good idea to discuss how you will keep in touch with your employee before she begins her SML.

Remember that you must keep an employee informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was at work, eg organisation changes or redundancy situations.

Keeping in touch (KIT) days

Employees may, in agreement with you, do up to ten days’ work – known as keeping in touch (KIT) days – under their contract of employment during their SML period without it affecting their right to statutory maternity leave or pay.

An employee cannot take a KIT day during compulsory maternity leave – see the page in this guide on the right to maternity leave.

During KIT days, employees can work for you. This could be her normal work or could be attending a conference, undertaking training or attending a team meeting.

Any amount of work done on a KIT day counts as one KIT day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, she will have used up one of her KIT days.

If work on a KIT ‘day’ spans midnight, this counts as one KIT day – as long as this is the employee’s normal working pattern.

Payment for KIT days

You and the employee should agree on how much you will pay her for a KIT day – this could be set out in her contract of employment or you may decide on a discretionary, case-by-case basis.

If the employee is receiving statutory maternity pay (SMP) when she works a KIT day, you must continue to pay her SMP for that week.

The employee can work under her contract of service for the employer paying her SMP for up to ten days (KIT days) during her maternity pay period without losing any SMP.

If the employee has used her ten KIT days and she does any further work, she will lose a week’s SMP for the week in which she has done that work. If a week in her maternity pay period contains only KIT days, she would be paid SMP for that week. If a week in her maternity pay period contains the last KIT day and she does a further day’s work in the same week, she will lose SMP for that week.

The SMP the employee receives for the week in which she works a KIT day can count towards any contractual pay you agree with her for working that KIT day. However, you could agree that she will receive her normal daily rate in addition to the SMP for that week.

Whatever the arrangement, you can still continue to recover SMP from HM Revenue & Customs (HMRC) as normal – see the page in this guide on maternity pay.

You will need to comply with your statutory obligations, such as paying at least the national minimum wage, as normal.

Unfair treatment and KIT days

An employee can only work a KIT day if she wants to and you agree to it – you cannot make an employee work a KIT day against her wishes, nor can the employee insist she works a KIT day if you don’t agree to it.

It is unlawful for you to treat an employee unfairly or dismiss her because she:

• refused to work a KIT day
• worked – or considered working – a KIT day

If an employee believes that you have treated her unfairly or dismissed her under these circumstances, she may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in a tribunal claim for detrimental treatment, unfair dismissal and/or sex discrimination if you fail to address it

---

Changing a return date

Unless the employee has notified you otherwise, the date she returns to work will normally be the first working day 52 weeks after her statutory maternity leave (SML) began.

Returning to work early

If an employee wishes to return to work early, she must give you notice at least eight weeks before her new return date. You can accept less or no notice at your discretion.

For example, if an employee was due to return to work after 52 weeks’ SML on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, she would need to give you eight weeks’ notice of the new date, ie by 14 March.

If you didn’t provide appropriate notification of when her leave should end, the employee does not have to give you eight weeks’ notice – see the page in this guide on notification and confirmation of maternity leave.

If the employee attempts to return to work earlier than planned without giving you notice, you can postpone her return by up to eight weeks. However, you may not postpone her return to a date later than the end of her 52-week SML period.

If the employee still comes to work during the period of postponement, you do not have to pay her.

Returning after the planned date

If an employee wishes to return to work after the planned return date, she should give you notice of her new date of return at least eight weeks before the original planned return date.

For example, if an employee originally notified you that she planned to return to work at the end of her ordinary maternity leave (ie after 26 weeks) on 1 October but – while on leave – decides that she wishes to take her full entitlement of 52 weeks, she must notify you of this eight weeks before 1 October, ie by 6 August.

If you didn’t provide appropriate notification of when her leave should end, the employee does not have to give you eight weeks’ notice – see the page in this guide on notification and confirmation of maternity leave.

Not returning to work from maternity leave

An employee who does not wish to return to work at all after her SML must give you notice of this. This will be the same notice as she would give for resignation in any other circumstances as required by her contract of employment.

However, as long as she specifies the date on which she wishes to terminate the contract (eg the date she was due back at work after SML), her SML continues.

In addition, if she terminates her contract before the end of the statutory maternity pay (SMP) period, you must continue to pay her SMP for the full 39 week SMP pay period, provided she has not started work for an employer who did not employ her in the 15th week before her expected week of childbirth.

Employees who don’t return are not required to pay back any SMP they have received. See the page in this guide on maternity pay.

---

Returning to work from maternity leave

An employee is entitled to return to the same job that she had before going on statutory maternity leave (SML) if she only took ordinary maternity leave (OML), ie the initial 26-week period of SML. The rules are different where an employee takes all or some of her additional maternity leave (AML), ie the second 26-week period of SML.

Returning to work after OML

An employee who returns to work during or at the end of her OML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.

If you prevent an employee returning to work, she may make a complaint of unfair dismissal to an employment tribunal.

If she returns to work but you don’t give her old job back, she may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in an employment tribunal claim for sex discrimination or detrimental treatment if you fail to address it

See the page in this guide on maternity leave and protection against detriment or dismissal.

Returning to work after AML

An employee who returns to work during or at the end of her AML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.

However, if it is not reasonably practicable for you to let her return to her old job, you should offer her a job:

• that is both suitable and appropriate for her to do
• on terms and conditions that are no less favourable than those for her original job

If you offer the employee a job that fulfils the criteria above and she unreasonably refuses it, she will have effectively resigned.

If you offer the employee a job that doesn’t fulfil the criteria, she may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in an employment tribunal claim for sex discrimination or detrimental treatment if you fail to address it

You should try to consult with employees during their SML about any proposed changes to their job in preparation for their return. See the page in this guide on contact and work during maternity leave.

Taking parental leave after SML

Employees who qualify for parental leave may take some of this leave immediately following the end of their SML.

An employee is entitled to return to the same job as before if the parental leave was for four weeks or less, and wasn’t preceded by any AML.

If the parental leave period is for longer than four weeks and/or is preceded by a period of AML, the employee is treated as though they were returning to work after AML. See our guide on parental leave and time off for dependants.

Breastfeeding

Your health and safety obligations towards a breastfeeding employee are the same as they were when the employee was pregnant. See our guide on pregnancy at work.

You must provide breastfeeding employees with a place to rest and suitable rest periods. Toilets are not suitable for this purpose.

Pregnancy during SML

If a woman becomes pregnant during her SML, she must notify you of this in the normal way – see the page in this guide on notification and confirmation of maternity leave.

It’s possible for her subsequent period of SML to begin as soon as the current one ends. In these circumstances, her rights on her eventual return are the same as they would have been had she just taken a single period of SML.

Flexible working requests

An employee returning to work may make a request to work flexibly, eg to change start or finish times, work from home or do part-time hours. If possible, you should discuss this with the employee prior to SML, or during the keeping in touch process. Read our guide on flexible working – the law and best practice.

---

Maternity leave and protection against detriment or dismissal

Employees are protected from suffering a detriment or dismissal for taking, or seeking to take, statutory maternity leave (SML).

Detrimental treatment and SML

You must not subject an employee to any detriment by acting, or deliberately failing to act, because she:

• took SML
• sought to take SML

Examples of detrimental treatment include denial of promotion, facilities or training opportunities which you would normally have made available to the employee.

If an employee believes you have treated her detrimentally under these circumstances, she can take a claim of sex discrimination to an employment tribunal.

Redundancy during SML

If a redundancy situation arises at any stage during an employee’s SML, you may not be able to continue employing her under her existing contract of employment.

In these circumstances, you must offer her – before that contract ends – any suitable alternative vacancy you have. This includes a vacancy with an associated employer or with a successor to the original employer.

The new job must start immediately after the end of the original one and must:

• be suitable and appropriate for her to do, and
• have terms and conditions that are not substantially less favourable to her than if she had continued to be employed under the original contract

If you fail to comply with these requirements and dismiss the employee, the dismissal will be unfair. She may also have a claim for sex discrimination.

However, if you end up making an employee on SML redundant because you had no suitable alternative work to offer her, the dismissal may be fair.

On dismissal, her SML period comes to an end, but her entitlement to statutory maternity pay (SMP) continues until the end of the 39-week SMP period – assuming it hasn’t already ended.

You must provide written reasons for dismissal to any woman you dismiss or make redundant while she is pregnant or on SML.

See our guide on redundancy: the options.

Dismissal on or after return to work from SML

The dismissal of an employee will be automatically unfair if you dismiss her – or select her for redundancy in preference to other comparable employees – solely or mainly because she:

• has taken SML
• benefited from the terms and conditions of employment to which she was entitled during that SML period
• failed to return from her SML on time because you failed to give her any or adequate notification of the end date of her leave – see the page in this guide on notification and confirmation of maternity leave

Dismissal, selection for redundancy or other detrimental treatment in these circumstances may also amount to sex discrimination, for which employment tribunal compensation is uncapped.

However, a dismissal may be potentially fair if, on the employee’s return from additional maternity leave:

• you could not offer her the old job
• you – or an associated employer – offered her suitable alternative employment but she unreasonably refused

See the page in this guide on returning to work from maternity leave.

Dismissal on grounds unrelated to SML

It is still possible for you to fairly dismiss an employee who is on – or who has recently returned from – SML. If the reason for the dismissal is:

• largely or wholly unrelated to her SML
• not for any other reason that is unfair or unlawfully discriminatory

You must provide written reasons for dismissal to any woman you dismiss or make redundant while she is pregnant or on SML.

Dismissal of replacement employees

You can fairly dismiss an employee you took on to replace an employee on maternity leave.

However, make sure you inform them that their position is only for maternity cover before they start.

---

Maternity pay

Statutory maternity pay (SMP) is paid for up to 39 weeks and usually covers the first 39 weeks of an employee’s maternity leave. You can use our interactive SMP calculator to calculate entitlement for your employee and how much you may be able to recover.

Eligibility for SMP

To be eligible for SMP, a pregnant employee must meet certain qualifying conditions.

For more information, see our guide on statutory maternity pay: eligibility, forms and records.

The meaning of the term ’employee’ for SMP purposes is different to the meaning for statutory maternity leave (SML) and other employment rights. This means that some workers who are not employees, eg agency workers, may qualify for SMP, even though they don’t qualify for SML.

SMP rates and recovery

For the first six weeks you must pay your employee SMP a weekly rate equal to 90 per cent of their average weekly earnings (AWE).

For the next 33 weeks you must pay them the lower of the following:

• £135.45 from 1 April 2012
• 90 per cent of their AWE

You can recover some or all of your SMP payments from HMRC – the proportion you can recover depends on the size of your annual NICs liability.

For more information, see our guide on how to calculate and recover Statutory Maternity Pay.

If your employee is eligible you must pay them a weekly SMP rate equal to 90 per cent of their AWE for the first six weeks.

The rate that you pay them for the following 33 weeks may be different. See the page on calculating SMP manually in our guide on how to calculate and recover Statutory Maternity Pay.

To find out how much you should pay, you can also use our interactive SMP calculator to calculate entitlement for your employee and how much you may be able to recover.

You can recover some or all of your SMP payments from HMRC – the proportion you can recover depends on the size of your annual NICs liability. See the page on calculating SMP recovery in our guide on how to calculate and recover Statutory Maternity Pay.

Enhanced maternity pay

If you wish, you can offer enhanced maternity pay arrangements to attract and retain employees. For example, you could:

• pay more than SMP over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, SMP for the remaining 23 weeks
• make a bonus payment on the employee’s return to work

You could change the qualification criteria for these enhancements, eg the employee needs a year’s continuous service.

You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis.

You can still recover from HMRC the SMP portion of any enhanced maternity pay.

---

CASE STUDY

Here’s how we managed contact and work during an employee’s maternity leave

Inferno Communications devises and manages cutting-edge PR campaigns for some of the biggest names in technology, such as Microsoft, Sony and Palm. The company has grown from three to over 20 employees in five years and is proud of its range of forward-thinking employment policies. Here, managing director Grant Currie explains how the business approached a recent maternity leave situation.

WHAT I DID

Arrange the leave

“When one of our account directors, Caroline Saunders, told us she was pregnant, we were genuinely pleased for her. We’ve always based our employment practices around a healthy work-life balance, so although Caroline was the first person in the company to take maternity leave, it was no big drama.

“Importantly, we already had a comprehensive maternity policy in place, so the first thing that happened was a sit-down meeting with Caroline to go through the policy and make sure she knew what to expect.

“While we obviously needed to discuss methods of keeping in touch during the leave, we wanted to give Caroline control over how this was managed. After all, if maternity leave is a stressful experience, your employee may be less inclined to return to work and you risk wasting time, money and client goodwill in finding a replacement.”

Encourage communication

“Caroline arranged keeping in touch in consultation with me, her line manager and our HR representative. We were quite keen for her to take advantage of keeping in touch (KIT) days, which allow an employee to undertake up to ten days’ work during maternity leave without affecting her maternity pay or leave so the system was explained before she went on leave.

“As an employer you can’t insist on anyone working a KIT day, but in Caroline’s case, she chose to take a number of KIT days in the weeks before returning because, as she puts it, she wanted to get back into the rhythm of work! KIT days included attending team meetings and client updates, mostly things that allowed her to re-engage with colleagues rather than working in isolation at home.

“We’re a tightly-knit company, so some keeping in touch was achieved naturally through chatting to friends within the business. In addition, we made sure she was included in important communications internally. Caroline’s line manager also visited her at home 12 weeks before she was due to return to talk about her role and discuss options for part-time working.”

Make an investment

“Our maternity provision goes beyond the statutory minimum requirements, a decision which we believe helps us to recruit and retain the best staff.

“I think another reason why Caroline’s maternity leave worked well is that there was flexibility on both sides, particularly when it came to keeping in touch. You can’t second guess how someone is going to feel soon after the birth of a child and putting any kind of pressure on them would be detrimental to both the individual and the business in the long run.

“We were delighted to welcome Caroline back after her maternity leave. As I said to her at the time, I felt a bit like a football manager getting one of his best players back after being on loan!”

WHAT I’D DO DIFFERENTLY

Be more aware of childcare arrangements

“While Caroline has generously expressed how happy she was with her maternity leave, we learnt retrospectively that she had struggled with childcare choices that had to be made prior to returning to work. Although it’s a completely personal decision, I wish we’d facilitated a conversation about it so that we were at least aware of her concerns.”

---