Law guide: Employment

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Maternity rights

Maternity rights

Contents

Maternity leave

Ordinary maternity leave

All pregnant employees have a right to 26 weeks' ordinary maternity leave (OML) regardless of their length of service, (i.e. they qualify for the right from the day they start work). Note that to qualify for this right, the pregnant woman must be an 'employee' and not be a worker or self-employed.

In addition, the following employees do not have a right to maternity leave:

  • Women who are normally employed abroad (unless they have a work connection with the UK)
  • Policewomen and women serving in the armed forces
  • Share fisherwomen

What is the difference between an 'employee' and a 'worker'?

The majority of people in work are employees; however, most agency temps and freelance contractors are not. A person is more likely to be an employee than not if their work provider:

  • Describes them as an employee
  • Tells them which work to do
  • Controls when, where and how they do their work
  • Supplies the equipment that they need to do their work
  • Pays tax and National Insurance contributions on their behalf
  • Pays them sick and holiday pay
  • Subjects them to the usual disciplinary and grievance procedures

Additional maternity leave

If your employee is entitled to ordinary maternity leave, she will be entitled to additional maternity leave (AML) of a further 26 weeks commencing from the end of OML.

Compulsory maternity leave (CML)

Employers should not permit employees to work in the 2 weeks after the date of birth if the workplace is an office or similar or 4 weeks if the workplace is a factory. This restriction applies to any kind of work (e.g. from home or from the hospital) and not just attending work at the workplace. Any breach will result in the employer being liable for a criminal offence unless they can show that they did not require the employee to work and had no intention that she should do so. CML counts as part of OML.

Employee's notification of leave

In order to be entitled to take her maternity leave, an employee must notify you:

  • That she is pregnant
  • When the expected week of childbirth (EWC) will be. This date is the start of the week in which the baby is due to be born and should be provided by the doctor or midwife. It may be evidenced by means of a medical certificate (known as MAT B1) if you so request
  • When she intends her maternity leave to start

These requirements can be given separately, but all the information must be provided to you by no later than the end of the 15th week before the EWC.

Late notification

You must accept a late notification from your employee if it was not reasonably practicable for her to notify you earlier (e.g. because she didn't realise that she was pregnant or because she only started to work for you after notification was due).

If it would have been reasonably practicable to provide notification in time, but an employee still failed to do so, then you could insist that the employee should provide at least three weeks' notice before starting their maternity leave.

Start of maternity leave

The earliest day that an employee's maternity leave can begin is the 11th week before the EWC and the latest day that leave can begin is on the day after birth.

Automatic commencement of leave

Maternity leave starts automatically, regardless of when the employee has said she actually wants her maternity leave to start, the day after:

  • She is absent from work wholly or partly because of her pregnancy at any time from the beginning of the four weeks before the start of her EWC
  • She has given birth

Changing the start date

The employee can change her start date, provided that she gives you the required amount of notice. If she wants to start her date earlier than the first date she gave you, she must give you at least 28 days' notice before her new start date. If she wants to delay her start date, she must give you at least 28 days' notice before the original start date. She can choose to further vary the start date using the same procedure. You can request that she notify you of the change in writing.

Notification from you

After receiving notice of your employee's proposed or varied start date (or of the automatic commencement of maternity leave), you must give your employee notice of when her full maternity leave (i.e. her OML and AML) will end. This document must be sent to her within 28 days of receiving her notification. If you have received notification from your employee of a change to her start date you must notify her of the new end date within 28 days of the new chosen start date.

Terms and conditions during leave

An employee's contract of employment continues throughout both OML and AML unless either you or the employee expressly ends it or it expires.

During OML and AML an employee has a statutory right to continue to benefit from all the terms and conditions of her employment. The only exceptions are terms relating to wages or salary - you are still obliged to pay her statutory maternity pay.

Examples of contractual terms and conditions that continue during OML and AML include:

  • Gym membership
  • Participation in share schemes
  • Reimbursement of professional subscriptions
  • The use of a company car or mobile phone (unless provided for business use only)

Performance-related pay

Generally, you will not be liable to make any payments related to an employee's performance (such as bonuses and/or commissions). However, an employee will still be entitled to the pro rata amount for bonus or commission payments that relate to the time before her OML.

Statutory employment rights

Both OML and AML count towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, e.g. the right to a redundancy payment, and for assessing seniority and personal length-of-service payments, such as pay increments, under her contract of employment.

Pensions

For the purpose of pension rights, during OML an employer should maintain its contribution to an occupational pension scheme. Where AML coincides with statutory paid maternity leave, i.e. during the first 13 weeks of AML, the employer should continue to pay its contribution towards an occupational pension scheme (as with OML). For the remainder of the AML period, or where an employee is not receiving maternity pay, the employer will be under no obligation to pay pension contributions unless the contract of employment states otherwise.

The employee must continue to pay her pension contributions based on the amount of statutory maternity pay or enhanced maternity pay that she receives, if the pension scheme rules require her to do so. An employee will not have to make any contributions towards her pension during any period during which she is not receiving any maternity pay. However, she may still make voluntary contributions if the pension scheme rules allow her to do so.

Holiday entitlement

An employee continues to accrue her statutory annual leave entitlement of 5.6 weeks throughout both ordinary maternity leave (OML) and additional maternity leave (AML).

Similarly, contractual annual leave entitlement will continue to accrue throughout both OML and AML.

An employee may not take annual leave during maternity leave. You should instead allow the employee to take any untaken annual leave before and/or after her maternity leave. You cannot make payment in lieu of her taking her statutory annual leave unless her employment contract is terminated.

Carrying over leave

What if an employee has not been able to take all her annual holiday leave within an employer's holiday year? Under UK law there are limitations on carrying over unused holiday entitlement from one holiday year to the next. An employee cannot carry over any unused statutory holiday entitlement at all unless her employment contract allows this or a collective agreement provides for this and even then only a maximum of 1.6 weeks can be carried over.

However, these restrictions are at odds with the view of the European Court of Justice since it is a requirement that employees continue to accrue statutory entitlement during their leave and that they should be allowed to take this leave before or after their maternity leave.

Therefore it is suggested good practice for employers to allow their employees to take any unused holiday entitlement on their return from maternity leave, even if this means carrying forward more than 1.6 weeks' holiday leave.

Contact during leave

The general rule is that if an employee works for her employer during her maternity leave (with the exception of 'keep in touch days' - see below) this will bring her leave and maternity pay to an end. However, some contact between the employer and employee is allowed during the maternity leave period and, consequentially, you can make reasonable contact with an employee and she may make contact with you.

Contact can be made with the employee by any means, e.g. telephone, email, letter or a meeting in the workplace.

What amounts to 'reasonable contact' will depend on each employee's particular circumstances, such as whether an agreement has been reached between you and the employee regarding the extent and frequency of the contact, their position, the nature of their job or whether contact is required due to important events, such as changes to the workplace, keeping an employee informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was working, such as redundancy situations.

'Keeping in touch (KIT)' days

An employee can also come to work for ten days or less as a way of keeping in touch with workplace developments, without it affecting her right to maternity leave or pay. These 'KIT' days must be agreed between you and the employee. Therefore an employee cannot be required to take a KIT day nor are you obliged to offer or agree to your employee working a KIT day.

An employee cannot take a KIT day during compulsory maternity leave.

During KIT days, an employee can carry out her normal day-to-day work, but she could also partake in other activities which would help her keep in touch with her workplace such as attending conferences, training days or team meetings.

Any work done on a KIT day will count as one KIT day. So, if an employee comes in just for a thirty minutes to attend a training session or meeting and does no other work, she will have used up one of her KIT days.

Payment for kit days

An employee is entitled to be paid for the work she does on a KIT day. You should agree with the employee how much you will pay her for a KIT day. This could be set out in her contract of employment or you may decide on a discretionary, case-by-case basis.

You must continue to pay statutory maternity pay (SMP) if the employee is receiving it when she works a KIT day. If the employee works for more than ten days in her SMP period, then she is not entitled to SMP for any week in which she works if she has already worked ten keeping-in-touch days.

The SMP that you have paid to the employee can count towards any contractual pay you agree with her for working a KIT day. However, you could agree that she will receive her normal daily rate in addition to the SMP for that week.

Whatever the arrangement, you must remember to pay at least the National Minimum Wage to the employee. You can still continue to recover SMP from HM Revenue & Customs (HMRC) as normal.

'KIT' days and unfair dismissal/discrimination

It is unlawful for you to treat an employee unfairly or dismiss her because she:

  • Refused to work a KIT day
  • Wants to work a KIT day

If an employee believes that you have treated her unfairly, she may have a claim against you for either unfair or constructive dismissal (if she resigns) and/or for sex discrimination if you fail to address it.

Right to return

An employee has the right to return to work when her maternity leave comes to an end. However, the employee must return immediately after her maternity leave expires, or provide you with the requisite notice to return to work early and return on the date given in the notice.

Unless the employee has notified you otherwise, the date on which she returns to work will normally be the first working day 52 weeks after her maternity leave began.

Returning early

If an employee wishes to return to work earlier than the original return date then she must give you at least eight weeks' notice prior to the date she wishes to return. You can accept less or no notice at your discretion.

For example, if an employee was due to return to work after 52 weeks' maternity leave on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, she would need to give you eight weeks' notice of the new date, i.e. by 14 March.

Note that if you did not provide the employee with the appropriate notification of when her leave should end, the employee does not have to give you eight weeks' notice.

If the employee attempts to return to work earlier than planned without giving you notice, you can postpone her return by up to eight weeks or until her maternity leave entitlement ends, whichever is earlier. You may not postpone her return to a date later than the end of her 52 week maternity leave period.

If the employee still comes to work during the period of postponement, you do not have to pay her.

If an employee has already given you notice that she wishes to return to work early and she subsequently decides that she wants to return to work earlier or later then her original return date (the return date given to you in her previous notice) then she will have to give you not less than eight weeks' notice.

Returning later

If she wants to delay her return then the notice must be given at least eight weeks' from the date that her original return date. So, for example, if she previously changed her date of return so that she would return to work in April, she must send this letter eight weeks before in February.

Not returning to work

An employee who does not wish to return to work after her maternity leave must give you notice of this as required by her contract of employment. However, as long as she specifies the date on which she wishes to terminate the contract (e.g. the date she was due back at work after maternity leave), her maternity leave continues.

Employees who don't return are not required to pay back any statutory maternity pay they have received.

In addition, if she terminates her contract before the end of the SMP period, you must continue to pay her SMP provided she has not started work for another employer.

Where an employee fails to return without good reason on the specified date, it may be a disciplinary matter. However, you should investigate whether the employee has a good reason for failing to return (such as illness) before deciding whether or not to take disciplinary measures.

Employee rights when returning to work

An employee will have the right return to a job with the same seniority, pension rights and similar rights. They will also have the right to return to a job with the same terms and conditions (including remuneration) that are as favourable as they would have been if they had not gone on leave.

Right to return to the same job after leave

For employees working in England, Wales or Scotland, an employee will be entitled to return to the same job they had before taking leave if they:

  • only took ordinary maternity leave (OML); or
  • took no more than 4 weeks of parental leave; or
  • the OML or parental leave of 4 weeks or less followed another period of statutory leave (such as additional maternity leave or shared parental leave but not parental leave) and the total leave taken for the child was 26 weeks or less.

For employees working in Northern Ireland, an employee will be entitled to return to the same job they had before taking leave if they only took OML; or took no more than 4 weeks of parental leave (in addition to OML) and no additional maternity leave.

Right to return to the same or alternative job after leave

When maternity leave follows a period of additional maternity leave or a period of leave doesn't comply with the above section 'Right to return to the same job after leave', the general rule is that a woman is entitled to return to the same job she had before the leave. However, if you cannot reasonably return an employee to the same job, they will be entitled to a similar job that has the same or better status, terms and conditions as the old job. The new job must be both suitable and appropriate to do in the circumstances. A suitable and appropriate alternative job must be as close as possible to the previous role held by the employee.

An employee who returns to work during or at the end of her OML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent. Her position, role and place of work must therefore remain the same unless her contract of employment states otherwise. For example if the employment contract states that your employee will be required to perform a range of work then on her return you may require the employee to perform a different role, it is within the range of work described in the contract.

She is also entitled to benefit from any general improvements to the rate of pay or other terms and conditions introduced while she was away.

If you prevent an employee returning to work, she may make a complaint of unfair dismissal to an employment tribunal.

If you offer the employee a job that fulfils the criteria above and she unreasonably refuses it, she will have effectively resigned.

If you offer the employee a job that does not fulfil the criteria, she may have a claim against you for either unfair or constructive dismissal (if she resigns) and/or for sex discrimination if you fail to address it. You will have to prove that it was not reasonably practicable to give the employee her same job back.

Note that an employee returning to work has a right to request flexible working conditions.

Changes to terms and conditions during leave

An employee on maternity leave is entitled to receive a pay rise or other improvements to her terms and conditions given to other employees in her grade or class of work.

You should consult with employees during their maternity leave about any proposed changes to their job in preparation for their return.