Law guide: Workplace

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Maternity leave

Maternity leave

Ordinary maternity leave and additional 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).

If you qualify for OML you will automatically qualify for a further 26 weeks' additional maternity leave (AML). AML starts once your OML come to an end.

You must be an employee to qualify for this right, i.e. not a worker or self-employed. For more information, see our 'Employees, workers and the self-employed' section.

In addition, pregnant employees who have worked for their employer for more than a year prior to the pregnancy are normally entitled to take a further 18 weeks' unpaid parental leave on top of their OML and AML. This leave can be taken immediately after their maternity leave or can be spread over several years.

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

Notifications to your employer

In order to be entitled to take maternity leave, you must notify your employer:

  • That you are 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 your employer requests
  • When you intend to start your maternity leave (to be provided in writing if your employer requests)

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

Late notification

Your employer must accept a late notification provided that it was not reasonably practicable for you to notify the employer earlier (e.g. because you didn't realise that you were pregnant or because you only started to work for your employer after notification was due).

If it would have been reasonably practicable to provide notification in time, but you still failed to do so, then your employer could delay the start of your maternity leave by insisting that you provide at least three weeks' notice.

When can OML start?

The earliest day that OML can begin is the 11th week before the EWC and the latest day that leave can begin is on the day after birth. However, there is an exception to this rule where maternity leave starts automatically due to illness related to the pregnancy or premature birth.

Automatic start of maternity leave

Maternity leave starts automatically, regardless of any start date that you have requested, from the day after:

  • You were absent from work wholly or partly because of your pregnancy at any time from the beginning of four weeks prior to the start of your EWC
  • Giving birth

Changing the start date

You can change your start date provided that you give appropriate notice to your employer.

If you want to choose an earlier start date, you must give at least 28 days' notice before the new date you have chosen.

If you want your leave to start later than the date you originally chose, you must give at least 28 days' notice before your original start date.

You can change the start date as many times as necessary so long as you provide your employer with the appropriate notice as described above. It is recommended that you make a request to change your start date in writing, and if your employer requests that you put this in writing, then you must do.

Notification from your employer

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

Compulsory maternity leave (CML)

Employees who are entitled to OML must not work in the two weeks after the date of birth if the workplace is an office, or four weeks if the workplace is a factory. This restriction applies to working remotely (e.g. from home or from the hospital) and not just attending work in 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.

Terms and conditions during leave

Your contract of employment continues throughout both OML and AML unless either you or the employer expressly ends it or it expires.

During OML and AML you have a statutory right to continue to benefit from all the terms and conditions of your employment. The only exceptions are terms relating to wages or salary. However, your employer is still obliged to pay you statutory maternity pay (SMP).

For more information see our 'Maternity pay' section.

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)

Generally, an employee will not have a right to receive any payments related to their performance (such as bonuses and/or commissions). However, you will still be entitled to the pro rata amount for any bonus or commission payments that relate to the period before you OML commenced.

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.

Pension contributions

For the purpose of pension rights, during your OML your employer should continue to pay its contributions to any workplace pension scheme. During the first 13 weeks of your AML (where AML coincides with statutory maternity pay), your employer should continue to pay its contributions towards any workplace pension scheme (as with OML). For the remainder of the AML period, or where you are not receiving maternity pay, your employer will be under no obligation to pay pension contributions unless your contract of employment states otherwise.

If your pension scheme rules require you to do so, you must continue to pay your pension contributions based on the amount of statutory maternity pay or enhanced maternity pay that you receive during any period that you are receiving maternity pay. However, you may still make voluntary contributions if your pension scheme rules allow you to do so.

Annual leave

You will continue to accrue your statutory annual leave entitlement of 5.6 weeks throughout both ordinary maternity leave (OML) and additional maternity leave (AML), as well as any contractual entitlement that you may have.

You cannot not take your annual leave during your maternity leave - your employer should allow you to take this leave before and/or after your maternity leave.

What happens if your employer's holiday year ends while you are still on maternity leave and you have unused holiday?

Your employer must let you carry over any untaken holiday into the next holiday year. However, you must use the carried-over holiday by the end of that holiday year.

Your employer cannot pay you in lieu of any untaken statutory annual leave unless your contract is terminated.

Contact during leave

The general rule is that if an employee works for her employer during her maternity leave, this will bring her leave and maternity pay to an end (with the exception of 'keeping in touch days' - see below) . However, some contact between the employer and employee is allowed during the maternity leave period and consequentially your employer can make reasonable contact with you and you may make contact with them. Contact can be made 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 your employer regarding the extent and frequency of any contact, your position, the nature of your job or whether contact is required due to important events, such as changes to the workplace, keeping you informed of promotion opportunities and other information relating to your job that you would normally be made aware of, 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 your employer. Therefore you cannot be required to take a KIT day nor can your employer be obliged to offer or agree to you working a KIT day.

However, you cannot take a KIT day during compulsory maternity leave.

During KIT days, you can carry out your normal day-to-day work but you could also partake in other activities which would help you to keep in touch with your 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 you came into your workplace for thirty minutes to attend a training session or meeting and did no other work, you will have used up one of your KIT days.

Payment for KIT days

You are entitled to be paid for the work you do on a KIT day. You and your employer should agree on how much you will be paid- this could be set out in your contract of employment or it may be decided on a discretionary, case-by-case basis by your employer.

Your employer must continue to pay SMP if you are receiving it when you work a KIT day. If you work for more than ten days in your SMP period, then you will not entitled to SMP for any week in which you have worked if you have already worked ten KIT days.

The SMP paid to you can count towards any contractual pay you agree with your employer for working a KIT day.

Unfair dismissal and discrimination

It would be unlawful for an employer to treat an employee unfairly or dismiss her because she:

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

If you believe that you have been treated unfairly, you may have a claim for either unfair or constructive dismissal (if you resign) and/or for sex discrimination if the employer fails to address it.

For more information, see our 'Unfair dismissal' section.

Right to return to work

You have the right to return to work when your maternity leave comes to an end. However, you must return immediately after your maternity leave expires, or else provide your employer with the requisite notice to return to work early and return to the work on the date given in the notice.

Returning to work early

Unless you notify your employer otherwise, the date on which you should return to work will normally be the first working day 52 weeks after your maternity leave began. If you wish to return to work earlier than this date then you must give your employer at least eight weeks' notice prior to the date you wish to return.

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

If your employer did not provide you with the appropriate notification of when your maternity leave should end, then you do not have to give eight weeks' notice.

If, however, you attempt to return to work earlier than planned without giving the required notice, your employer can postpone your return by up to eight weeks or until your maternity leave entitlement ends, whichever is earlier. Your return cannot be postponed to a date later than the end of your 52-week maternity leave period.

If your employer postpones your return and you still go to work during this period, you do not have the right to be paid.

Not returning to work

If you do not want to return to work after your maternity leave ends, you must give your employer notice of this as required by your contract of employment.

If you fail to return without good reason on the specified date, it may be a disciplinary matter. However, your employer should take into account any good reason for failing to return (such as illness) before deciding whether or not to take disciplinary measures.

Rights when returning to work

You will have the right return to a job with the same seniority, pension rights and similar rights. You 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 you had not gone on leave.

In addition, whilst on maternity leave you are entitled to receive a pay rise or other improvements to your terms and conditions given to other employees in your grade or class of work.

If you're prevented by your employer from returning to work, you can make a complaint of unfair dismissal to an Employment Tribunal (or Industrial Tribunal in Northern Ireland).

Right to return to the same job

Different rules apply depending on whether you work in Northern Ireland, England, Wales or Scotland.

If you work in England, Wales or Scotland, you will be entitled to return to the same job you had before taking leave if you:

  • only took OML; or
  • took no more than 4 weeks of parental leave; or
  • the OML or parental leave of 4 weeks or less followed a period of another kind of statutory leave (such as additional maternity or shared parental leave) and the total leave taken for your child was 26 weeks or less.

If you work in Northern Ireland, you will be entitled to return to the same job you had before taking leave if you only took OML or took no more than 4 weeks of parental leave (in addition to OML) and no additional maternity leave.

If you qualify but don't get your old job back, you may have a claim against your employer for either unfair or constructive dismissal (if you resign) and/or for sex discrimination if they fail to address it.

Right to return to the same or alternative job

When maternity leave follows a period of additional maternity leave or if a period of maternity leave doesn't follow the above rules regarding the right to return to the same job, the general rule is that you're still entitled to return to the same job you had before the leave. However, if your employer cannot reasonably return you to the same job, you will be entitled to a similar job which has the same or better status, terms and conditions as the old job. The new job must be both suitable and appropriate for you to do in the circumstances. A suitable and appropriate alternative job must be as close as possible to the previous role that you held.

If you are offered a job that fulfils the above criteria and you unreasonably refuse it, you will have effectively resigned.

If you are offered a job that does not fulfil the criteria, you may have a claim against your employer for either unfair or constructive dismissal (if you resign) and/or for sex discrimination if they fail to address it. Your employer will have to prove that it was not reasonably practicable to give you your same job back.

You also have a right to request flexible working conditions upon returning to work.

Your employer should consult with you during your maternity leave about any proposed changes to your job in preparation for your return to work.

Protection against detriment or dismissal

Employees are protected from suffering a detriment or dismissal for taking, or seeking to take, maternity leave.

Your employer must not subject you to any detriment by acting or deliberately failing to act, because you took maternity leave or sought to take maternity leave.

This could include denying promotion, facilities or training opportunities which would normally have been made available to you.

If you believe you have been treated detrimentally then you can make a claim of sex discrimination at a tribunal.

If a redundancy situation arises at any stage during your maternity leave and you're at risk of being made redundant, your employer must offer you any suitable alternative vacancies, where one is available, before your contract ends. This includes a vacancy with an associated employer or with a successor to your original employer.

The new job must start immediately after the end of the original one and must:

  • Be suitable and appropriate for you to do (taking into consideration any additional domestic duties that have arisen)
  • Have terms and conditions that are not substantially less favourable to you than if you had continued to be employed under the original contract

This requirement takes precedence over the general requirement to offer suitable alternative positions to other employees at risk of redundancy, i.e. an employee on maternity leave will have priority over others to be offered a suitable alternative vacancy.

If you work in England, Wales and Scotland, new laws expected to be in force from 6 April 2024 will extend the period during which you must be offered a suitable alternative vacancy:

  • Pregnant employees: the protection period starts from the point you notify your employer that you are pregnant.
  • Employees returning from statutory maternity leave: the protection period lasts until 18 months after either the child's date of birth (if tell your employer when it is) or the first day of the expected week of childbirth (if you don't).
  • Employees not entitled to statutory maternity leave (e.g. due to miscarriage during the first 24 weeks of pregnancy): the protection period ends 2 weeks after the end of the pregnancy.

If your employer fails to comply with these requirements and dismisses you, the dismissal may be unfair. You may also have a claim for sex discrimination.

If you are made redundant whilst on maternity leave because there is no suitable alternative work to offer you, or if you have been offered suitable alternative employment which you have unreasonably refused then the dismissal may be fair.

For more information, see our 'Workplace disputes' section.

Note that, on dismissal:

  • your maternity leave period comes to an end, but
  • your entitlement to SMP continues until the end of the 39 week SMP period (if it hasn't already ended).

The dismissal of an employee will be automatically unfair if she is dismissed or selected for redundancy in preference to other comparable employees solely or mainly because she:

  • Has taken maternity leave
  • Benefited from the terms and conditions of employment to which she was entitled during that leave
  • Failed to return from her maternity leave on time because her employer failed to give her any or adequate notification of the end date of her leave

Dismissal, selection for redundancy or other detrimental treatment in these circumstances may also amount to sex discrimination, for which tribunal compensation is uncapped.

It is still possible to fairly dismiss an employee who is on or who has recently returned from maternity leave. However, the reason for the dismissal must:

  • Be largely or wholly unrelated to her maternity leave
  • Not be for any other reason that is unfair or discriminatory

An employer must comply with the correct statutory procedure when dismissing an employee.

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