Mum's the word

Finding out a colleague is having a baby is a joyful occasion, but it can also bring up questions about all things maternity leave and pay – for everyone involved. There are various legal requirements and differences that employers need to get to grips with, so we’ve collated them in one handy article for you!

Qualification for Statutory Maternity Leave (SML) doesn’t depend on how long someone has been with you, how many hours they work or how much they get paid, as long as they’re an employee and have given you the correct notice.

Eligibility for Statutory Maternity Pay (SMP), however, depends on a number of aspects. To qualify, the employee must earn on average at least £123 a week, give the correct notice, provide proof of pregnancy and have worked for you continuously for at least 26 weeks, continuing into the ‘qualifying week’ – or the 15th week before that of the expected due date.

It's important to note that the above stipulations don’t relate to employees that have a child through surrogacy or adoption – who aren’t eligible for SML – but could get Statutory Adoption Leave and Pay instead.

Eligible employees can choose to take up to 52 weeks of maternity leave but must, for health and safety reasons, take a minimum of two weeks after giving birth. The earliest that leave can start is 11 weeks before the baby’s due date unless the baby is born early, in which case, leave will begin automatically the day after the birth.

If the employee works right up to their due date and, in the four weeks prior to this date, becomes unable to work due to a pregnancy-related illness, it will automatically trigger the start of leave.

Unless it’s not reasonably practical to do so, the employee must tell you the date that the baby is due and when they want their maternity leave to start (If they wish, this start date can be changed by giving you 28 days’ notice) at least 15 weeks prior to the due date. Please note, you cannot refuse maternity leave or change the amount of leave your employee wishes to take.

Following this, you must confirm in writing their leave start and end dates within 28 days of notice. As the employer, you must assume that the employee will take their full entitlement of 52 weeks unless they notify you to the contrary. However, employees can change their return-to-work date if they wish by giving you eight weeks’ notice before their expected date of return.

Eligible employees are entitled to receive up to 39 weeks of statutory maternity pay of their maternity leave:

• at 90% of their average weekly earnings (AWE) before tax for the first 6 weeks
• at £184.03 per week or 90% of their AWE (whichever is lower) for the remaining 33 weeks.
  

If the employee wishes to take the full 52 weeks, the last 13 of these would be unpaid.

Employees not entitled to SMP may be able to get Maternity Allowance instead, for which you’d need to provide an SMP1 form. There’s a useful SMP and leave calculator available at: bit.ly/U5-MaternityCalculator.

As the employer, you can ask for proof of pregnancy before you pay SMP. This will usually be a MATB1 certificate, which is issued by midwives and doctors 20 weeks before the due date. You can usually reclaim between 92% and 103% of employees’ Statutory Maternity (SMP), Paternity, Adoption and Shared Parental Pay from HM Revenue and Customs (HMRC). If you can’t afford to make statutory payments, you can apply for HM Revenue and Customs (HMRC) to pay you in advance.

Pregnancy involves numerous check-ups and hospital appointments – conflict with working hours is therefore highly likely. Pregnant employees are entitled to reasonable paid time off for antenatal care, including travel time to and from the appointment. As an employer, you cannot make the employee change the appointment to a different day or time. Fathers and partners of pregnant women are entitled to unpaid time off to attend two antenatal appointments, capped at six and a half hours for each appointment.

In terms of holiday entitlement, your employee will continue to accrue their full entitlement during their maternity leave and will be able to take this holiday during the period they are still at work or when they return from maternity leave. They can’t, however, take annual leave and maternity leave at the same time.

Employees can work up to 10 days during their maternity leave, known as ‘keeping in touch’ (KIT) days. These are optional, but if agreed upon, both the employee and employer need to confirm the type of work they’ll be completing and the rate of pay. The employee’s right to maternity leave and pay isn’t affected by using these KIT days.

Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP) is available for the mother, father or the mother’s spouse or partner – including civil partners and same sex partners if they’re having a baby using a surrogate or are adopting.

This can be taken in blocks rather than all in one go, but it must be taken between the baby's birth and first birthday (or within one year of adoption). Parents can choose to be off work together or stagger leave and pay, but leave can’t be taken before the mother has given birth or the adoption has taken place.

The mother is still expected to take maternity leave up until the birth, at which point she can opt to cancel the maternity leave and start SPL. The remainder of the 50-week leave can then be split among the parents as they choose, as well as how much of the SPL and ShPP each of them will take.

As an Alliance member, you have access to Law-Call's 24-hour legal advice telephone service, which can help you navigate through the process. Contact details can be found in the Alliance member benefit overview section of EYA Central: bit.ly/U5Law-Call.