What circumstances can affect entitlement to SMP?
There are various circumstances that can affect an employee’s entitlement to SMP. Some of these include the employee being off work due to sickness, the employee experiencing a miscarriage or stillbirth, the baby being born early and the employee being taken into legal custody. This guide looks at some of the most common circumstances that may affect SMP-entitlement.
For more information on all types of circumstances that can affect employees’ entitlement to SMP, see the Government’s guidance.
If an employee becomes sick during the period to which they are entitled to receive SMP, they should be paid SMP rather than Statutory Sick Pay (SSP) - irrespective of whether they are still on maternity leave or have returned to work but need to take time off sick.
If an employee has a stillbirth (ie the baby is born dead after the 24th week of pregnancy), they will be entitled to their full maternity rights, including maternity leave and SMP. Evidence will generally be required (eg a stillbirth certificate issued by the registrar or a certificate for the registration of a stillbirth issued by the attending midwife or doctor).
If a baby is born but only survives for an instant, this will be considered a live birth, and maternity rights will follow accordingly.
If an employee has a miscarriage (ie the baby is born dead before the 24th week of pregnancy), they will not be entitled to maternity leave or pay. However, they will be entitled to sick pay for as long as a GP concludes that they are not fit for work.
Sickness absence in respect of a miscarriage is protected in the same way as for a pregnancy-related illness. Employers are not allowed to take this into account when making a decision about employment (eg when considering redundancies), as this will constitute maternity and pregnancy discrimination.
Premature or early birth
After the qualifying week
In the case of a premature or early birth which takes place after the 'qualifying week' (ie the 15th week before the expected week of childbirth), the maternity leave and SMP pay period start on the day after the date of birth. Employees should provide their employers with medical evidence (generally a Form MATB1 maternity certificate) ideally within 21 days after the date of birth and no later than 13 weeks after the start of the SMP pay period.
Before the qualifying week
If the premature or early birth takes place before the qualifying week, special rules apply. Employees must:
provide medical evidence of the date the baby is due
have been continuously employed by their employer for 26 weeks
have an average weekly earning high enough in the relevant period (this must be worked out using the actual birth date instead of the qualifying week)
give acceptable notice to start SMP
Employees should also provide their employers with medical evidence (generally a Form MATB1 maternity certificate) of the date the baby was expected to be born as well as the actual date of birth. Ideally, this should be done within 21 days after the date of birth and no later than 13 weeks after the start of the SMP pay period.
Employers can also accept:
any document signed by a doctor or midwife provided an expected date of birth is provided
a birth certificate as evidence of the date of birth, however, this is not acceptable evidence of the date the baby is due
In the case of premature or early birth before or during the qualifying week, the requirements for continued employment will be satisfied if the employee would have completed 26 weeks of continuous employment if the baby had not been born early.
Special rules apply if an employee is absent from work because of their pregnancy, and the absence continues into or starts within the 4-week period starting on the Sunday of the fourth week before the week the baby is due. In this case, maternity leave and the related SMP pay period begin on the day after the first complete day of absence from work due to pregnancy within the 4-week period.