Managing maternity leave and pay

Under current regulations, individuals classed as an employee needs to declare:

• that they're pregnant
• the expected week of the birth – you can ask for a medical certificate to confirm, such as ‘MAT B1’ form if they are more than 20 weeks pregnant
• the date they wish to commence maternity leave – the earliest possible being 11 weeks before the due date

The employee is obliged to share this information with you no later than 15 weeks before the due date. It doesn’t need to be in writing. In cases where you ask for it in writing, the individual must issue it this way.

Upon receiving the information, it is your responsibility to:

• respond to the employee within 28 days
• let them know they’re entitled to 52 weeks’ maternity leave
• agree their return to work date – presume they’re going to take 52 weeks (they can change it later if they decide to take less, but must give you an update with 8 weeks’ notice)

One of the first steps is to establish a pregnancy and maternity policy that can be accessed by all employees, via an intranet or handbook. This will enable everyone to know where they stand.

In cases where you suspect your employee is pregnant, but they haven’t confirmed it yet, you should be supportive and sensitive.

There could be a reason as to why they haven’t disclosed the information straight away. It may be the case that they are still in the early days of their pregnancy, or perhaps they haven’t shared the news with their family and friends.

If it is impacting their performance at work, you could ask to have a private chat with them to discuss if they need any support from you.

An individual isn’t required to tell you they’re pregnant if you haven’t yet hired them – and this includes the interview stage.

Remember, it is against the law to ask if they are pregnant and it could also be against the law to choose not to hire them because you believe they’re pregnant.

When they have accepted your job offer, the rules for pregnant employees apply.

It is a requirement for them to tell you about:

• health and safety concerns
• planned medical or pregnancy appointments

Upon accepting the job offer, they must inform you they’re pregnant and abide by the rules for pregnant employees.

It is against the law to discriminate against someone you employ, or considering employing, because of:

• their pregnancy
• a pregnancy-related illness, including time off
• maternity pay or leave they take, or are planning to take

This law stands regardless of how long the person has been at the workplace.

By law, an employer is required to carry out a risk assessment for all women of child-bearing age. For example:

• a pregnant employee and the unborn child she is carrying
• an employee who's become a new mother in the last 6 months
• an employee who's breastfeeding

A single assessment can be conducted that covers your entire workplace.

We’d also advise:

• completing risk assessments for each employee, especially for those where you know of any health risks
• cover people who are not employees, including agency workers or the self-employed, in the assessment

Risks cover:

• heavy lifting or carrying
• long working hours
• standing or sitting for long periods without suitable breaks
• exposure to dangerous substances
• very high or low temperatures

Maternity leave

Employees are entitled to 52 weeks' maternity leave. This right is granted from the first day they start the job.

Revising maternity leave start date

Should an employee wish to change their maternity leave start date, your employee must provide you with 28 days’ notice. If they give you notice under this, the new date needs to be agreed by both of you.

If they do not want to take all their leave

It is not essential that employees take their full maternity leave, however they must take at least 2 weeks off after the birth.

If they work in a factory, they need to take at least the first 4 weeks off following birth.

As an employer, you must not discourage the employee from taking all the maternity leave as they are legally entitled to this.

A month before due date

In cases where the staff member is off work due to a pregnancy-related illness within 4 weeks of the baby’s expected arrival, that is when maternity leave will automatically commence – unless you have both agreed to delay it for health and safety reasons.

Upon the start date of maternity leave, you are required to pay them maternity pay rather than sick pay.

Unexpected and/ or early arrivals

If the baby is born early, maternity leave pay commences on the day following the birth.

Some workplaces might have a policy about who needs to let you know about the birth and how quickly.

If the baby is born under unexpected or traumatic accounts, it may be the case that you’re told about it from someone other than the employee, such as relative of theirs. Regardless of your policy, it is still important that you’re flexible where necessary and understanding in these circumstances.

If the employee experiences a miscarriage, stillbirth or the baby dies shortly after birth, the employee is still entitled to maternity leave and pay rights if the baby:

• is stillborn after the 24th week of pregnancy
• dies shortly after birth

In such cases, you should be very supportive and understanding.

Should you need to discuss work-related matters with the employee, you could schedule a meeting with their family or friends:

• when this communication happens
• how it happens (for example, if an urgent communication can be sent to a friend or family member for a specific period of time)

In addition, you could offer a phased return to work or more time off.

It is illegal to treat employees unfairly for maternity leave they are entitled to take or plan to take.

A pregnant employee and their partner may have the opportunity to use Shared Parental Leave (SPL). SPL enables leave to be used in a flexible manner between the pregnant staff member and their partner.

As such, the pregnant employee may choose to end maternity leave early. However, the pregnant employee is still required to take at least 2 weeks’ maternity leave after the baby has been born.

Just as any other employee would, employees accrue paid holiday during maternity leave, including bank holidays.

However, holiday and maternity leave is unable to be taken at the same time. To this end, it’s advised that you:

• chat with your employee about their plans on taking holiday, whether it will be before or after maternity leave
• ensure your record is up to date on what is agreed

By law, employees are allowed Statutory Maternity Pay.

Maternity pay is issued as soon as the employee starts maternity leave.  There is a minimum amount you must pay them each month, and you pay it just like you would their salary, with tax and National Insurance deductions.

If you would like to offer more, you can enhance their maternity pay by adding Occupational Maternity Pay on top - sometimes known as contractual maternity pay.

An employee’s contract should state:

• the amount of pay they get during maternity leave
• the duration of this pay

Pay outlined in the employment contract is known as ‘contractual’ maternity pay, if it’s above the legal minimum for maternity pay.

In cases where enhanced maternity pay is provided, it can help your business retain and attract top talent.

The legal minimum

If your business does not offer enhanced maternity pay, you are obliged to pay the following:

• 90% of their average weekly earnings (before tax) in the first 6 weeks of maternity leave
• 90% of their average weekly earnings (before tax) or statutory maternity pay (SMP) - whichever is lower – during the next 33 weeks of maternity leave

This applies unless otherwise stated in the contract – you are not required to provide maternity pay upon reaching the close of this period.

An employee is eligible for SMP if both of the following apply:

• they've worked at your business continuously for at least 26 weeks, ending with the 15th week before the week the baby is due
• their average weekly earnings are at least £123 a week, up to the end of the 15th week before the baby is due

Employers offering enhanced maternity pay need to ensure it exceeds SMP.

How to calculate SMP

Use the maternity pay calculator on gov.uk.

If they're not entitled to SMP

If your employee does not meet the criteria for SMP, you need to give them the ‘SMP1’ form within 7 days of your decision.

To find out more about the SMP1 form, visit gov.uk.

Maternity Allowance

A pregnant employee could receive Maternity Allowance if they are not able to get enhanced maternity pay or SMP.

Maternity Allowance is paid by the government, for up to 39 weeks.

Keeping records

SMP payments must be recorded.

Pregnant employees can have time off with full pay for pregnancy-related ('antenatal') appointments.

Antenatal appointments include:

• medical appointments related to a pregnancy
• classes for pregnancy-related health, fitness or relaxation
• sessions that support the person's mental health and wellbeing

Paid time off includes travel time.

The pregnant employee should let you know about these appointments at their earliest convenience.

Prior to maternity leave beginning, it should be agreed with your employee the best way to maintain lines of communication should any changes arise in the workplace.

This includes arranging how you'll keep in touch (for example, by phone).

By law you must tell them about:

• promotion or other job opportunities
• redundancies
• any reorganisation that could affect their job

You may also wish to inform them about:

• social events
• colleagues who are leaving or joining
• arrangements for their return to work

It could be good to:

• give the employee the chance to decide how much contact they want, in cases where it’s not something you must tell them about
• remind them they are not obliged to work during their leave

When maternity leave has finished, the right to return to work will depend on the amount of time they’ve taken whilst on leave.

Up to 26 weeks' maternity leave

The employee has the right to return to the same job.

26 weeks'+ maternity leave

The employee is entitled to return to the same job unless the employer can provide a genuine reason for offering them an alternative.

This applies even if an individual is doing that person’s job whilst they have been on maternity leave.

In cases where there is no alternative but to offer a different job, it is essential that the job is suitable and on the same terms. For example, the same should be given in terms of:

• pay
• benefits
• holiday leave and pay
• location
• seniority

Returning to work sooner than planned

If the individual expresses interest in returning to work before taking all their maternity leave, they need to give you notice in writing at least 8 weeks before the date they want to return.

If they want to change their working patterns

Employees can request flexible working if they want to make significant changes to the way they work, for example, their working hours.