A guide to Maternity leave in the workplace

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 2019, the rate for SMP has stood at £146.68 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.

What happens if a baby is premature, sick or dies?

Employees will still qualify for full maternity rights if the baby:

• Is stillborn after the start of the 24th week of pregnancy
• Is born alive at any point (even if it later passes away)

The NHS defines premature babies as those born before 37 weeks gestation. There are 3 sub-categories of premature babies:

• Extremely preterm (before 28 weeks)
• Very preterm (before 32 weeks)
• Moderate to late preterm (32-37 weeks)

Some babies will be born at full-term (37 weeks+) but may also be sick. These babies may have an infection, need treatment for jaundice, or have been born with a condition which makes them sick or means that they require urgent and / or significant medical attention.

If a baby arrives early, maternity leave will automatically start on the day after the birth. If you are an employer, it is likely that your employee will not be focusing on work with a sick and/or premature baby. You should offer appropriate workplace support for parents with premature or sick babies in these circumstances.

What rights do employees have during maternity leave?

During maternity leave, your employee is legally entitled to benefit from their usual terms and conditions of employment, except for normal remuneration (monetary wages or salary), although they may be entitled to receive maternity pay. This includes:

• Paid holiday
• Protection from unfair dismissal
• Pension payments and rights
• Any workplace benefits that they would normally receive (eg. Gym memberships, medical insurance etc.)

An employee on maternity leave should also be kept up to date with anything that is happening within the workplace. This should usually include, but is not limited to:

• Promotion opportunities
• Changes at work, including team structure and hierarchy
• Social events
• Redundancy

How you choose to keep your employee up to date should be pre-agreed between you before they leave work on maternity leave.

If a redundancy situation arises, the employee on maternity leave must be offered a suitable alternative vacancy if one can be provided. If you cannot provide this, then the employee can be made redundant.

However, you must ensure that:

• The pregnancy or maternity is not the reason for the redundancy
• The redundancy is genuine
• Redundancy procedures have been followed fairly
• Redeployment has been fairly considered and all propriate avenues exhausted

Is there a process for returning to work after maternity leave?

During the period of maternity leave, an employee can request to work KIT, or ‘keeping in touch days.’  These are optional days which can be worked in order for the employee to remain in contact with their workplace. You can agree on up to 10 dates with your employee.

The type of work done, and the payment for this work should be agreed between the employer and employee beforehand. If an employee works only part of a day, this would still count as one of their ten keeping in touch days. For example, it is not possible to split the amount to create twenty half days.

If an employee works more than ten keeping in touch days, then their maternity leave and pay will automatically come to an end.

There is no legal obligation on an employer to offer KIT days, or for an employee to agree to them. But KIT days could be used to work part of a week, which could help the employee to return to their role in a gradual way.

At the end of maternity leave, your employee will usually return to their original job, but there are some factors to take into account. If they have taken maternity leave for six months or less, they have the right to return to their old job on the same terms and conditions as before they left – if the job still exists, and depending on how their employment contract defines ‘the job’.

If they have taken maternity leave for more than six months, they still have the right to return to their old job – however, if it is not reasonably practicable to do so, they can be offered a similar job where terms and conditions must be on a par.

If your employee wants to return to work before taking their full maternity entitlement, they should inform you of their intentions at least eight weeks before the date they intend to return. You should always take this into consideration when employing someone on a ‘Fixed Term Work’ contract to cover a period of maternity

If your employee wants to amend their hours or duties on their return from maternity leave, they have the right to make a flexible working request.

How do I deal with discrimination?

UK law states that it is discrimination to treat a woman unfavourably on the ground f her pregnancy or maternity leave (Equality Act 2010 s18).

If your employee feels that they are being treated unfavorably, they should first speak to you informally. Usually, this allows for minor issues to be resolved quickly via a conversation with a line manager or other appropriate person within the business.

If they are unhappy with the outcome of an informal meeting, they then have the option of raising a formal complaint. This must be done in writing, and should make you aware of how strongly they feel about the situation, whilst simultaneously providing you with a further opportunity to resolve it.

As a last result, they could take you to an employment tribunal. There is generally a three-month time limit for bringing a claim to tribunal, but this can be paused if Early Conciliation (an informal resolution process between both parties) is taking place. Further information on tribunals can be found here.

Maternity leave can be a minefield for employers, especially those with limited initial knowledge, and/or in the SME space. However, understanding the complexities and legal requirements is vital if you are to not only avoid discrimination claims, but also ensure that your workers leave for maternity feeling valued, supported and ready to confidently return to their role when the time comes.