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Circumstances that can affect maternity pay

In general, employees are entitled to Statutory Maternity Pay (SMP) for up to 39 weeks, which consists of: 90% of average weekly earnings (before tax) for the first 6 weeks; and £151.97 or 90% of average weekly earnings (whichever is lower) for the next 33 weeks.

However, there are certain circumstances affecting pregnancy which can impact upon the SMP entitlements.

Employee sickness

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.

Stillbirth

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.

Miscarriage

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 starts 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:

  • give their employer medical evidence of the date the baby is due

  • have been continuously employer 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 the employer 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 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 a premature or early birth before or during the qualifying week, the requirements for continuous employment will be satisfied if the employee would have completed 26 weeks of continuous employment if the baby had not been born early.

Pregnancy related absence

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 4th week before the week the baby is due. In this case, maternity leave and the pertaining SMP pay period begins on the day after the first complete day of absence from work due to pregnancy within the 4 week period.

For further information about circumstances which may affect SMP entitlement, see GOV.UK or Working Families.

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