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It is essential that employers understand their legal obligations when it comes to maternity leave and pay. FG Solicitors frequently gets asked about these rights and the following are common questions we receive:
1. HOW MUCH MATERNITY LEAVE CAN A PREGNANT EMPLOYEE TAKE?
Regardless of their length of service or the number of hours worked each week, a pregnant employee is entitled to 52 weeks’ maternity leave. This is made up of 26 weeks of ordinary leave and 26 weeks of additional leave.
An employee must take at least 2 weeks’ maternity leave after she has given birth (this is increased to 4 weeks if they work in a factory). This is called compulsory maternity leave.
2. ARE THERE ANY NOTIFICATION REQUIREMENTS FOR THE PREGNANT EMPLOYEE?
Yes, an employee is required to provide notice to her employer 15 weeks before the week she is expected to give birth; she must confirm she is pregnant, her due date and when she intends to start her maternity leave.
3. ARE THERE ANY NOTIFICATION REQUIREMENTS THAT MY ORGANISATION MUST SATISFY?
Yes, an employer is required to notify the employee of the end date of her maternity leave within 28 days of receiving her notification. A failure to do this may mean the employee can return to work before the end of the 52-week period, without having to give the statutory 8 weeks’ notice to return.
4. WHAT ARE MY ORGANISATION’S HEALTH & SAFETY OBLIGATIONS?
Once the business has been notified that an employee is pregnant, is breastfeeding or has given birth in the last 6 months, it must carry out an individual risk assessment, which covers the employee’s specific needs.
5. WHAT PAY IS AN EMPLOYEE ENTITLED TO DURING MATERNITY LEAVE?
If an employee is eligible, she may be entitled to Statutory Maternity Pay (“SMP”). SMP is paid for 39 weeks at two different rates:
First 6 weeks: 90% of the employee’s normal weekly earnings.
Remaining 33 weeks: the prescribed rate which is set by the government each tax year (£172.48 each week (2023/2024)) or 90% of the normal weekly earnings, whichever is lower.
If an employee is not entitled to SMP, they may be eligible for Maternity Allowance (“MA”). The organisation must provide the employee with an SMP1 Form selecting the reasons why the employee is not entitled to SMP.
6. WHO IS ELIGIBLE FOR STATUTORY MATERNITY PAY?
An employee qualifies for SMP if they:
earn on average at least £123 a week (2023/2024);
have provided the correct notice and proof of pregnancy; and
have worked for the organisation continuously for at least 26 weeks continuing into the 15th week before the week the employee is expected to give birth.
7. WHAT HAPPENS TO ANNUAL LEAVE DURING AN EMPLOYEE’S MATERNITY LEAVE?
During a period of maternity leave, an employee will continue to accrue statutory annual leave. If they are unable to take their annual leave because they are on maternity leave, the organisation is required to allow the employee to carry over their accrued but untaken holiday into the next holiday year.
8. CAN AN EMPLOYEE TAKE HER ANNUAL LEAVE DURING MATERNITY LEAVE?
The employee cannot take holiday or get holiday pay whilst on maternity leave. The employee can opt to take her annual leave before or after her maternity leave.
9. CAN MY ORGANISATION PAY THE EMPLOYEE HER HOLIDAY PAY IN LIEU?
No, the organisation cannot pay an employee in lieu of any holiday she accrues during maternity leave.
10. WHAT ARE KIT DAYS?
These days are called “keeping in touch days”, when an employee can work for up to 10 paid days during their maternity leave. These are optional and must be agreed by both the organisation and the employee.
11. HOW CAN FG SOLICITORS HELP MY ORGANISATION?
FG Solicitors can advise on specific issues in relation to maternity leave and pay including tricky issues such as benefits, redundancy and return to work. In addition, we can prepare bespoke family friendly policies and procedures to ensure that your organisation is legally compliant.
This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.