Law guide: Workplace

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Maternity pay

Maternity pay

Statutory maternity pay (SMP) is paid for no more than 39 weeks and is usually paid during the 39 weeks of maternity leave. It first becomes payable when an employee is not at work because of her pregnancy or because she has given birth.

Qualifying for SMP

A pregnant woman qualifies for SMP provided she has:

  • At least 26 weeks' continuous employment up to and including the date of the 15th week before the expected week of childbirth (EWC) - the "qualifying week"
  • Average weekly earnings (AWE) at or above the lower earnings limit for National Insurance contributions (NICs) that applies at the end of the qualifying week
  • Given her employer medical evidence of her pregnancy (a form MAT B1) or a document giving the same information as the MATB1 issued by her midwife or GP. This form can only be issued from the 21st week of pregnancy.
  • Given her employer 28 days' notice of the date from which she wants to start her SMP. If she is entitled to statutory maternity leave (SML) she can give this notice at the same time as her notice for SML. If it was not reasonably practicable for the employee to give this notice in time then it should be given as soon as possible.

The employee also has to be:

  • An employed earner, i.e. someone working for an employer who is liable to pay secondary Class 1 NICs on their wages or salary
  • Working under a contract of service

This specifically covers employees but an agency worker is also eligible for SMP even if she is not eligible for SML.

If you have more than one employer, you may be able to claim SMP from each one.

If you fail to qualify for SMP

If you do not qualify you may be able to claim maternity allowance. Your employer must give you form SMP1 stating the reason why it cannot pay you SMP. This form will be required to support any claim to maternity allowance. You must also have your original MAT B1 form returned back to you.

If there is a dispute between you and your employer over whether you should be paid SMP, then you can refer it to HM Revenue and Customs to make a formal decision.

Receiving SMP payments after your employment ends

If a qualifying employee's employment ends after the start of the 'qualifying week' (the 15th week before her EWC) but before the employer starts paying her SMP, the employer must still pay it. This also applies if an employee's employment ends during the SMP period.

These rules apply regardless of whether an employee's employment ends voluntarily, e.g. she resigns, or because she is dismissed.

If you return to work, but then for any reason you stop work whilst still in your SMP period, your employer must start paying you SMP again.

An employer can stop paying SMP if an employee:

  • Dies
  • Is taken into legal custody by the police, e.g. is arrested and/or in prison
  • After the birth works for another employer

SMP rates

SMP is payable at a rate of 90% of an employee's average weekly earnings (AWE) for the first 6 weeks. There is no upper limit. The remaining 33 weeks are paid at either:

  • The standard weekly rate (see GOV.UK for the current rate); or
  • 90% of your AWE if this is lower than the standard weekly rate.

Your employment contract may entitle you to additional maternity pay.

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