Any female employee who becomes pregnant can take 52 weeks of statutory maternity leave. This comprises 26 weeks of ordinary maternity leave and, immediately on from that, 26 weeks of additional maternity leave.
Statutory Maternity Pay
It is compulsory for an employer to pay a female employee during the first 39 weeks of her maternity leave. This is known as statutory maternity pay. An employee qualifies for maternity pay if: she has been in 26 weeks of continuous employment up to the 15th week before the expected week of childbirth; and her weekly earnings are at a level on or above the lower earnings limit for NICs.
For the first 6 weeks of ordinary maternity leave the rate of pay is set at 90% of the employee’s average weekly earnings. For the other 33 weeks the rate of pay is set at £140.98per week or 90%of the employee’s average weekly earnings, depending on whichever lower. An employer is perfectly free to pay their employee more if they choose. This is called enhanced maternity pay.
Recovering maternity leave payments
To help them cope with covering maternity leave, businesses can recover 92 per cent of their statutory maternity payments.
They do this by deducting the amount they are allowed to reclaim from their National Insurance contribution payments. There is, however, extra support for smaller companies. If a firm’s total annual NI contributions in the previous tax year were £45,000 or less, then they can qualify for small employers’ relief. This allows them to re-claim 103% of statutory maternity payments.
Those employers who opt to pay their employee more than the statutory minimum are entitled to claim on the statutory payment but not on the total payment they make.
Pregnant women can take time off for antenatal purposes. This covers such things as doctor’s and hospital appointments, and parental guidance classes. Any woman who takes time off for valid antenatal purposes must be paid at her normal rate for the hours she is away from work.
An employee’s and an employer’s obligations
A pregnant woman has to tell her employers of her intention to take maternity leave no later than the 15th week before the week in which she expects to give birth. She must also inform her employer of when she intends to start maternity leave: this date cannot be earlier than the beginning of the 11th week before the week in which she expects to give birth, but it can be up until the birth itself.
The employer then has 28 days in which to write to the employee. The letter must confirm the date on which the employee will return to work (that is, the end of her agreed maternity leave).
If, as a result of a sickness that is linked to the pregnancy, a woman is unable to go to work, she can start her maternity leave from the first day of the sickness so long as that day falls within four weeks of the week in which she expects to give birth. Should she become sick before then, her maternity leave can begin at the start of that fourth week.
Terms and conditions of employment
While a woman is on maternity leave, both ordinary and additional, the terms and conditions of her employment still apply apart from those of wages and salary.
Benefits can also continue to accrue during maternity too, although to what extent depends on the employee’s contract of employment.
Employees on maternity leave continue to accumulate statutory annual leave (5.6 weeks for those working five-day weeks). However, employees cannot take statutory annual leave while on maternity leave. Any holiday leave remaining should be taken either before or after their maternity leave.
Employees on maternity leave are also entitled to benefit from any pay rises that are introduced for their job during their absence. Pay rises which the employees would have been received had they been at work need to be used to re-calculate their statutory maternity pay.
Contributions made by the employer to an employee’s occupational pension scheme also continue throughout ordinary and (paid) additional maternity leave in the same way as if the employee were at work and earning her normal wage. It is only during the last (unpaid) 13 weeks of additional leave that, if the contract of employment allows them, an employer can stop making employer contributions to an occupational pension scheme. If the pension scheme requires that the employee makes contributions during paid maternity leave, these should be calculated on the basis of the statutory or enhanced maternity pay that she is receiving. These contributions will stop during the last 13 weeks of (unpaid) additional leave, but she can still make voluntary contributions if the rules of the scheme permit it.
Returning to work
Employees can return to work before the agreed date but must give their employers a minimum of 8 weeks’ notice of their wish to do so.
If an employee wants to come back to work later than the agreed date – say, after 52 weeks rather than 39 weeks – the same 8-week notice period applies.
Employees who don’t wish to return to work should give their employers the notice period for leaving their job as set out in their contracts of employment. Provided that the date for leaving their job is a date on or after they were due back at work, then the maternity leave continues.
When a woman returns from ordinary maternity leave, she is entitled to take up her old job and on the same terms as before.
When a woman returns from additional maternity leave, she is entitled to take up her old job and on the same terms as before. If, however, in the case of additional maternity leave, it is not possible to allow the woman to return to her old job, an employer can offer her a position that is suitable for her and on terms that are not less favourable than those of her former job.
No employer can dismiss a woman simply because she is pregnant or for an issue that is connected to her pregnancy. Nor can she be dismissed for going on maternity leave. Any employee that loses her job for these reasons can take her employer to a tribunal and claim unfair dismissal.
An expectant woman’s legal rights also mean she cannot be treated unfairly at her place of work because she is pregnant or taking maternity leave.
To qualify for paid paternity leave, an employee must have worked for the same employer for 26 consecutive weeks. This length of service must have been completed by the 15th week before the week in which the baby is expected.
A man who holds responsibility for the upbringing of the baby, or is the child’s biological father or the mother’s husband or partner (including same-sex or civil partners), is deemed entitled to take paternity leave.
An employee should notify their employer of their intention to take paternity leave before the end of the 15th week before the expected week of the childbirth.
Taking paternity leave
Under the rules, employees are allowed two weeks paid leave. Paternity leave can only be taken as a single unit of either 1 or 2 weeks; it cannot be split into two separate sections or into odd days.
Paternity leave cannot begin before the actual birth of the baby. It can start on the actual birth date itself, or on an agreed date after the date of the birth, or on a date after the first day of the expected week of the childbirth. If the baby is born after the agreed date, paternity leave must be postponed until the actual birth.
Paternity leave must end within 56 days of the birth or, if the child is born earlier than anticipated, between the date of the birth and 56 days from the first day of the week in which the child is expected.
Statutory Paternity Pay
Statutory paternity pay is set at £140.98 per week or 90% of the employee’s average weekly earnings, depending on which of the two is the lower. It can be paid for no more than 2 weeks.
In order to be paid during paternity leave, an employee will need to be on a weekly wage that is equal to or higher than the lower earnings limit for National Insurance and will have been in 26 weeks of continuous employment up to the 15th week before the expected week of childbirth. As with maternity leave, an employer can pay more if they so choose.
Again as with maternity leave, employers can recover 92% of the statutory payments or 103% in the case of those businesses that have total annual NI payments of less than £45,000.
The right to 2 weeks of paid leave is extra to the 13 weeks of unpaid leave which a parent can take.
An employee’s and an employer’s obligations
If they plan to take paternity leave, an employee must tell their employer by the 15th week before the week in which the baby is due.
When an employee informs his employer of his intention to take paternity leave, he must also supply certain other information. The employee must indicate the dates which the leave period will cover (the start date can be altered so long as the employer is given 28 days warning); he must declare in writing that he will use the leave to look after the child or offer the mother help and support, that he holds responsibility for the child and that he is the father of the baby or the mother’s husband or partner. The employee has to tell the employer of the baby’s arrival as soon as he is able.
Terms and conditions of employment
While on paternity leave, the terms and conditions of employment still apply apart from those of wages and salary.
Employees on paternity leave continue to accumulate statutory annual leave (5.6 weeks for those working five-day weeks). However, employees cannot take statutory annual leave while on paternity leave. Any holiday leave left them should be taken either before or after their paternity leave.
Contributions made by the employer to an employee’s occupational pension scheme also continue throughout paternity leave in the same way as if the employee were at work and earning their normal wage, irrespective of whether they are being paid statutory paternity pay. If the pension scheme requires that the employee makes contributions during paid paternity leave, these should be calculated on the basis of the statutory or enhanced paternity pay.
Returning to work
An employee can expect to come back to same job and the same conditions that he held before going on paternity leave.
Those employees who qualify for parental leave can take some of that leave straight after paternity leave. Should an employee take more than four weeks of parental leave right after paternity leave, then they are entitled to take up their old job and on the same terms as before. If, however, it is not possible to allow them to return to their old job, an employer can offer them a position that is suitable and on terms that are not less favourable than those of their former job.
No employer can dismiss an employee or treat them unfairly for requesting or taking paternity leave.
This is only an outline guide to maternity and paternity pay. Employers who are uncertain about the rules should seek expert advice