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Maternity leave

Maternity leave is one of the basic family friendly rights that often crops up in the workplace. It raises some tricky issues in practice that employers need to understand.
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Maternity leave is the right for employees to take up to 12 months’ leave on giving birth. To be eligible for leave, the employee must give notice of their pregnancy in a particular form and must specify when they want their leave to start. In some situations, maternity leave can start earlier than planned (eg in some cases when the employee is sick due to a pregnancy-related reason or if they give birth prematurely).

Maternity leave is divided into 6 months’ 'ordinary maternity leave' (OML) followed by 6 months’ 'additional maternity leave' (AML). There is no minimum service requirement. If the employee’s child is born on or after 5 April 2015 and they and their partner qualify, the employee may use shared parental leave instead of taking OML and AML in full. The employee can choose to take OML and AML in full before and after 5 April 2015 and not use shared parental leave.

At the earliest, maternity leave can be taken 11 weeks before the week in which the child is expected to be born (unless the baby is born early). For more information, read Circumstances that can affect maternity pay.

Employees with 26 weeks of continuous service who earn more than a set amount (currently £120 per week) are entitled to Statutory Maternity Pay (SMP) of 90% of normal pay during the first 6 weeks and then, for a further 33 weeks, a fixed statutory rate (£151.97 per week as of 6 April 2021) or 90% of average weekly earnings (whichever is lower).

During maternity leave, the Employment contract continues except for pay, and all benefits must continue as normal.

Employees must not be dismissed or subjected to detriment for taking or requesting parental leave. Maternity and pregnancy are protected characteristics for discrimination law purposes.

Compulsory maternity leave

If an employee recently had a baby, they must take at least 2 weeks off work after the baby is born. This is called compulsory maternity leave. They must take at least 4 weeks compulsory leave if they work in a factory. 

After that it is up to the employee to decide how much leave they wish to take. If you do not wish to take the full maternity leave agreed, they must give at least 8 weeks’ notice that they are returning to work early. The employer is entitled to refuse to pay until the 8 week notice period has ended, if the notice was not provided.

They are entitled to return to exactly the same job on the same terms and conditions if they return during or at the end of the OML period. 

Consider introducing a Maternity policy which will help managers and staff to understand the maternity leave rights and obligations, ensuring that the policy includes references to your Data protection policy and Employee privacy notice - a statement describing how you collect, use, retain and disclose personal information.

You must conduct a Health and safety assessment to consider risks to pregnant and breastfeeding employees and their child(ren) and then take action to remove the risks.

When you receive the employee’s formal notification of their pregnancy and intended leave dates then you must reply within 21 days to confirm when the maternity leave is due to end. Otherwise the employee can change their return to work date without notice.

While employees are on maternity leave, continue to include them in circulation of information about internal training, vacancies, social events and other opportunities to ensure that they are not prejudiced through taking leave. How much they wish to participate is, however, up to them.

Holiday continues to accrue during maternity leave; it is risky to prevent employees carrying forward accrued holiday if the holiday year end falls during their maternity leave, as the law is unclear on this issue.

Pensions and maternity leave is also a very tricky area. Pension contributions should be maintained during paid maternity leave; it is not clear whether pension contributions must be made during OML but need not be made during unpaid AML.

If an employee on maternity leave receives a pay increase, their SMP must be retrospectively adjusted as if the increase had been in effect when their pay was initially calculated.

Take care to adjust performance and bonus targets, where appropriate, to avoid unfairly penalising employees on maternity leave. Pro-rating is normally acceptable. Do not reduce bonuses that are not dependent on work performed (eg loyalty bonuses and some Christmas bonuses).

Where employees take AML, it may not be practicable to have them return to the same job. In this case, they must be offered suitable, alternative employment. Employees who take only OML must always return to the same job unless a redundancy situation has arisen.

Where a redundancy situation arises affecting a woman on maternity leave, Ask a lawyer about offering suitable alternative employment, as this area can be difficult. For more information, read Redundancy and pregnancy or maternity leave.

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