Topics

Overview
Ordinary maternity leave
Additional maternity leave
Redundancy and maternity leave
Maternity pay

Overview

Pregnant staff have many legal rights and employers must be aware of these or risk facing expensive tribunal claims. A pregnant employee has the right:

• not be dismissed, selected for redundancy, or subjected to any disadvantage because she is pregnant or for any reason connected with childbirth or pregnancy
• to 26 week's ordinary maternity leave (OML) and 26 weeks' additional maternity leave (AML)
• to a reasonable amount of paid time off work for antenatal care
• to return to work in the same job after maternity leave (or, in certain cases, to a suitable alternative job)
• to 39 weeks' statutory maternity pay (SMP)
• to be paid normally if suspended from work on maternity grounds – unless she unreasonably refuses an offer of suitable alternative work
• to be transferred from night work to day work if her doctor says that night work is affecting her health or that of her child
• to have access to rest facilities during normal working hours if pregnant or breastfeeding
  

Ordinary maternity leave

• Every pregnant employee has a legal right to 26 weeks' ordinary maternity leave (OML).
• To qualify she must tell her employer by the end of the 15th week before her expected week of childbirth (EWC) the date she intends to start her OML.
• Her employer must respond in writing within the next 28 days telling her the date she is expected to return to work if she takes her full OML entitlement.
• An employee can change her mind about when she wants her leave to start – as long as she tells her employer at least 28 days before the new date or original date, whichever comes first.
• An employee cannot start her OML before the beginning of the 11th week before her EWC (unless she gives birth prematurely).
• If an employee is incapacitated by a pregnancy-related illness at any time after the start of the 4th week before her EWC, her maternity leave starts on the day that she is incapacitated.
• During the OML period all an employee's terms and conditions of employment continue – except for the right to be paid.
• An employee cannot return to work within 2 weeks of giving birth.
• An employee can return to work before the end of her OML but only if she gives her employer 28 days' notice.
• An employee has the right to return to work in the job she had before her OML started.

Additional maternity leave

• Additional maternity leave (AML) starts at the end of OML and continues for 26 weeks thus giving an employee who qualifies a total of 52 weeks' leave.
• To qualify for AML a woman must have completed 26 weeks' service by the end of the 15th week before her expected week of childbirth.
• Women whose babies are/were due on or after 5 October 2008 are now entitled to the same terms and conditions that would have applied to them had they been at work (except for terms relating to remuneration). Staff are therefore entitled to their full benefit package throughout both OML and AML with the exception of pension rights. The employee will be entitled to her full contractual holiday entitlement for the holiday year even if she is on maternity leave from some or all of it. Pension rights should continue during the paid element of maternity leave (the first 39 weeks). Employees should continue to be covered by life assurance and private medical schemes and should continue to benefit from gym memberships and childcare vouchers during AML. Any discretionary annual/Christmas bonus or loyalty bonus should also be paid during AML.
• There are obligations on the employee during AML – she is still bound by her implied contractual duty not to disclose confidential information and she must adhere to any terms relating to notice.
• An employee can return to work before the end of her AML but only if she gives her employer 28 days' notice.
• An employee returning from AML is entitled to the job she had before she went on leave or , if this is not reasonably practicable, to another job which is suitable for her – and this must be on terms and conditions no less favourable than those which would have applied had she not been absent on leave.

Redundancy and maternity leave

• Selecting a woman for redundancy because she is on maternity leave is automatically unfair and discriminatory.
• If there is a redundancy situation, women on OML or AML must be included in the selection and consultation process in the usual way.
• When selection criteria are applied to employees on OML or AML, employers must ensure that such employees are not prejudiced by their absence.
• If the job of a woman on either OML or AML is to be made redundant, she must be offered suitable alternative work. This is a legal entitlement and if her employer does not offer her any vacancies which may exist before her existing contract comes to an end, her redundancy will be automatically unfair. This effectively means that a woman on maternity leave is entitled to be offered any suitable job which is available in preference to any other employee.

Statutory maternity pay

• Most women are entitled to statutory maternity pay (SMP) regardless of their hours of work.
• The main qualifying conditions are that they have enough service – 26 weeks by the end of what is called the qualifying week (the 15th week before the expected week of childbirth); still be pregnant in the 11th week before the expected week of childbirth; have average weekly earnings of at least the lower earnings limit (£90 for 2008-09); and have stopped working for their employer.
• The maternity pay period (MPP) is the period of 33 weeks during which a woman gets SMP. It normally starts on a Sunday. It is flexible and a woman can choose to work up until the date of birth and still get 33 weeks' SMP. But she cannot start her MPP earlier than 11 weeks before her EWC (unless her baby is born before then).
• The first 6 weeks of SMP are paid at 90% of earnings with the remaining 33 weeks paid at a flat rate – currently £117.18 a week.
• Employers are responsible for paying SMP but can recoup 92% of it from their monthly National Insurance bill.
• A woman does not have to intend to return to work to get SMP.