A guide to maternity rights A guide for small businesses
MGPAT001 SEPT2016
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A guide to maternity rights Every year, around 700,000 babies are born in the UK, the majority to working parents. Maternity law provides protection for employees who are expecting a child. This guide has been written to help you to find out about your rights and obligations as an employer when an employee tells you they are having a baby.
1
Maternity Notification
The employee must notify you no later than the 15th week before the baby is due (or as soon as is reasonably practicable), of the following: • The fact she is pregnant • The Expected Week of Confinement (EWC) • The date she intends to commence her maternity leave, which cannot be before the beginning of the 11th week before the EWC. You can request that this notice be given in writing. You must then write to the employee, confirming the date when she is expected to return to work and what she must do if she wants to vary the date she intends to return. See the example letter produced in the Forum’s Employment Guide. Once the employee has told you she is pregnant, you have a duty to carry out a risk assessment specific to her. If the results of your risk assessment show that she is unable to carry out her normal work, you must offer her alternative work. If she is unable to do any alternative work or none is available, she must be suspended from employment on full pay at her normal rate for as long as the suspension continues. The exception to this is if she has unreasonably refused an offer of suitable alternative work. The Forum’s Employment Guide has more on this.
Adoption Adoption leave mirrors maternity leave. The notification for adoption is as follows. Within 7 days of being matched with a child, employees must tell: • How much leave they want • Their leave start date • The ‘date of placement’ (the expected or actual date the child is placed with them).
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Surrogacy At least 15 weeks before the due date employees must tell you when the baby is due and when they want to start their leave.
2
Maternity leave
All pregnant employees, regardless of their hours of work or length of service, are entitled to 52 weeks’ maternity leave; 26 weeks of Ordinary Maternity Leave (OML) and 26 weeks of Additional Maternity Leave (AML) – making one year in total.
“Same sex couples have the same rights. An employee cannot be discriminated against because of their sexual orientation”
Provided the employee meets the notification requirements, she can take this leave regardless of how long she has been with the company, how many hours she works or how much she is paid.
Ordinary Maternity leave (OML) The earliest week maternity leave can start is 11 weeks prior to the Expected Week of Confinement (EWC). The expectant mum can vary the date she intends to commence OML, providing she gives 28 days’ notice before the original date notified, or 28 days before the new date she intends to commence OML, whichever is the earliest. Ordinary Maternity Leave commences: On the date the pregnant employee has notified you that she intends OML to commence, OR on the day after the first day of absence if the employee is absent from work due to a pregnancy-related reason, after the beginning of the fourth week before the expected week of childbirth, OR on the day on which the child is born. If this is before the date she has notified, the maternity leave period begins automatically.
Additional Maternity leave (AML) AML must be taken immediately after the end of OML. Once the OML period is over, the contract of employment continues to run and you and your employee are still bound by the mutual duties of trust and confidence. However, the only benefits from those terms and conditions are those relating to notice, redundancy, confidential information, acceptance of gifts from customers/clients, and grievance and disciplinary procedures. Employees on AML still accrue holiday, up to the 4 weeks’ statutory leave provided by law, but they must take it within the holiday year. In some instances, this may mean that the employee will need to return to work early in order to take the holidays accrued. Further contractual leave (extra days holiday over and above the statutory holiday allowance of 5.6 weeks, if these form part of the contract) will not be accrued unless this has previously been agreed with the employer.
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3
Maternity Pay
A pregnant employee’s weekly hours and earnings do not affect her right to AML, although her earnings will affect her maternity pay. To qualify for maternity pay, employees must have been continuously employed for a period not less than 26 weeks, ending with the week immediately preceding the 14th week before the EWC and must be earning an average £112 in the eight weeks prior to the qualifying week. Maternity pay will be: • paid for a maximum of 39 weeks • paid for the first six weeks at 90% of the employee’s average weekly earnings (with no upper limit) • paid for 33 weeks at a flat rate of £139.58 or 90% of the employee’s average weekly earnings, if that is less than the flat rate. For more information, Her Majesty’s Revenue & Customs’ (HMRC) have a helpful booklet on Statutory Maternity Pay (SMP) which you can download from www.gov.uk/government/ collections/statutory-pay
4
Maternity Allowance (MA)
Employees who are not entitled to SMP, but meet qualifying conditions based on recent employment and earnings records, may claim up to 39 weeks’ Maternity Allowance (MA). Maternity Allowance may be payable if your employee has: • worked for at least 26 of the 66 weeks before the week the baby was due (a part week counts as a full week); and • earned an average of £30 a week or more over any 13 of those 66 weeks. The amount the employee gets depends on their eligibility. They could get either: • £139.58 or 90% of the employee’s weekly earnings, whichever is less, and it is paid for up to 39 weeks. • £27 a week for up to 14 weeks To claim MA, your employee would need to ask Jobcentre Plus for a MA claim pack or download a MA claim pack in PDF format. www.gov.uk/government/publications/maternity-allowanceclaim-form MA is not liable to income tax or National Insurance (NI) contributions.
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5
Paternity leave
Employees are eligible to take 2 weeks paternity leave if their partner is having a baby, adopting a child or having a baby through a surrogacy. The statutory weekly rate of Paternity Pay is £139.58, or 90% of your average weekly earnings (whichever is lower)
Eligibility To be eligible and employee must be either be: • the father • the husband or partner of the mother (or adopter) • the child’s adopter • the intended parent (if you’re having a baby through a surrogacy arrangement)
Paternity Leave and Pay The employee must: • Have worked for your company continuously for at least 26 weeks by the end of the 15th week before the expected week of childbirth (known as the ‘qualifying week’) • Be employed by your company up to the date of birth • Earn at least £112 a week (before tax) • Give the correct notice – at least 15 weeks before the baby is due inform you of the following: o The babies due date o The date they want the leave to start o Earn at least £112 a week (before tax)
6
Shared Parental leave
An employee whose partner decides to return to work before the end of their statutory maternity period (52 weeks) may be able to share their partner’s remaining maternity leave and pay. Employees with babies born after 5th April 2015 may qualify for up to 50 weeks’ shared parental leave and up to 37 weeks’ statutory shared parental pay. Shared parental leave replaces additional statutory paternity leave and is intended to give parents greater flexibility to share childcare. For more information, please refer to our Blog www.fpb.org/business-support/guideadditional-paternity-leave
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7
Employer reimbursement level
Employers can recover 92% of the maternity/paternity pay they pay by deducting it from their next payment of NI contributions, PAYE and other payments to HMRC. Small-business employers may recover 103% of the maternity/paternity pay they pay. If you paid £45,000 or less in Class 1 National Insurance in the last complete tax year before: • The ‘qualifying week’ - the 15th week (Sunday to Saturday) before the week of the due date, OR • The ‘matching week’ - the week (Sunday to Saturday) your employee was told they’d been matched with a child by the adoption agency, OR • The date on the official notification if your employee is adopting a child from another country Employers may claim money in advance to help with their cash flow. Your payroll system may work out how much you can recover, or you can use the calculators provided by HMRC at www.hmrc.gov.uk/paye/employees/statutory-pay/smp-calc.htm#2
8
Antenatal care provision
The pregnant employee is entitled to reasonable time off for antenatal care, which is paid at the normal contractual rate of pay (antenatal care includes medical examinations and parenting and relaxation classes), but this is not an automatic right. However, if you unreasonably refuse to allow her to take time off or refuse to pay for the time, she would have the right to complain to a tribunal. If the tribunal agreed the refusal was unreasonable, you would have to pay compensation and, in some cases, this could be on the grounds of sex discrimination. You must pay the wages for the whole time required to attend the appointment, including travelling and waiting time. If the employee works part-time, you cannot insist she arrange antenatal appointments to take place at a time when she would not normally be at work. Except for the first appointment, you can ask her to supply: • a certificate from a registered medical practitioner confirming pregnancy • an appointment card/letter
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9
Premature birth
If the baby is born early, the employee’s maternity leave begins automatically. She may not have given the 28-day notification, but she should inform you of the birth as soon as possible afterwards. If she fails to do this, she loses her right to maternity leave. In practice, this means she may be regarded as taking unauthorised absence and therefore be subject to disciplinary proceedings.
10
Stillbirth
It is important to remember that the employee is entitled to maternity rights even if the baby is stillborn, provided childbirth takes place from the 24th week of pregnancy onwards.
11
Late birth
If the baby is overdue, maternity leave is extended to the end of the two-week period following childbirth. The employee is not allowed to return to work within two weeks of childbirth. Therefore, if she has still not given birth, her leave is extended to the end of the two-week period following childbirth. The employee can be prevented from returning to work if a health and safety regulation prohibits her from working after childbirth – seek advice.
12
Sickness during pregnancy
If the pregnant employee is sick before the 29th week of her pregnancy, you should treat the absence as sick leave, regardless of whether the sickness is pregnancy-related. If the employee is sick after the 29th week of pregnancy with a pregnancy-related sickness, she can choose whether to start her maternity leave early or take sick leave. If the employee is absent due to a pregnancy-related sickness any time within the four-week period before the EWC, the maternity leave is automatically triggered, even if she has not given 28 days’ notice. She must give you notice as soon as possible after the maternity leave begins. Maternity leave is not triggered if the illness is not pregnancy-related; however, so bear in mind that any decision that is made must be reasonable. Once maternity leave has started, the law does not allow the employee to return to work until after childbirth. Therefore, if she has a sickness that triggers her maternity leave, she is obliged to remain absent until the end of her leave, even if she had not planned to take it so early. This is the case even where she is sick for only one or two days. Of course, she could ask you if she could return to continue work until the date she intended to start her maternity leave, but you do not have to agree to this.
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13
Sickness during pregnancy
During the OML period, the contract of employment continues to exist. Employees continue to benefit from all the terms and benefits of their contract, apart from wages or salary. This includes accrual of holidays and all general pay rises, for example. Pregnant employees must not be selected for redundancy solely because of their condition. Any selection criteria must exclude pregnancy-related reasons, for example, pregnancy-related sickness absence. The employee must retain her seniority, pension rights and similar rights as if she had not been absent. She will also still have the use of her company car, if its provision includes private use. Any employee who works 16 hours or more per week prior to the birth of a child, and is in receipt of Statutory Maternity Pay or Maternity Allowance, will count as being in work and be eligible for child credit top-up under the Working Family Tax Credit. The intention is to help those who wish to be at home in the first months of their child’s life, but could not ordinarily afford to be.
14 Return to work The employee does not need to give notice of her return date if she intends to return at the end of the OML or AML period. However, if she is on AML, you can ask her to notify you of the actual date of childbirth and whether she intends to return at the end of her AML. As long as you make the request in writing, the employee must respond, otherwise she will lose her protection against automatic unfair dismissal due to her taking AML. Your request cannot be made any sooner than 21 days before the end of the employee’s OML. If an employee wants to return early from OML or AML, she must give at least eight weeks’ notice, otherwise you can postpone her return for up to 28 days, though not beyond the end of the relevant maternity leave period. The employee must return to the same job, with the same terms and conditions, as if she had not been away. This means the same job and any general improvements/benefits that have been made to it. However, if there is a redundancy situation, she should be included in the redundancy selection process at that date or dates when other persons, if there are any, are dealt with and consulted at the time of the potential redundancy. Remember: none of the selection criteria should relate in any way to her maternity condition, her OML or AML If there is some other reason why it is not reasonably practical for you to take the employee back to do her previous job, she should be offered alternative work which is suitable for her and appropriate for her to do in the circumstances.
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15
Keeping in touch days
The employee is able to work for up to 10 days during the statutory leave period without losing her statutory pay or bringing her leave to an end. ‘Work’ includes any work done under the contract of employment and may include training or any activity undertaken for the purpose of the employee keeping in touch with the workplace. Any work done under these provisions does not extend the total statutory maternity leave period. However, any such work must be by mutual agreement between the parties. What the employee is paid is a contractual matter between you and the employee, and is not covered by the legislation. ‘Day’ in this situation does not have to be a full day. If the employee attends work for a 2-hour training course, for example, this will count as one of the 10 days.
Did you know? Employees are entitled to extra unpaid leave. They can get 18 weeks’ unpaid parental leave after the birth of their child - this may be restricted to 4 weeks per year. Read our blog for more information.
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