As an employer, it is essential to know your responsibilities to a pregnant employee and to know what rights they have.
An employee who is pregnant must:
- Notify their employer of the pregnancy
- This should be done at least 15 weeks before the birth, or as soon as reasonably practicable to do so.
- Notify the employer of the expected week of childbirth (EWC)
- If necessary, you may request a certificate from a doctor or a registered midwife stating the expected week of birth.
- The date that she intends her maternity leave to start
- You can request that notice of maternity leave must be given in writing.
Maternity leave cannot start any earlier than 11 weeks before the EWC. Employers should write to employees within 28 days confirming dates of their maternity leave. If the baby comes early, the employee should notify you that she has given birth, and leave will start the day after the birth.
Statutory maternity leave can be up to 52 weeks. The first two weeks following the birth of the child are compulsory. For women who work in factories, this period is extended to four weeks. As an employer, you can be fined if your employee returns to work during this compulsory period. ‘Ordinary’ maternity leave begins after this two week period has ended, for a period of up to 24 weeks. Employees are entitled to take an additional 26 weeks after this. Employees must give at least 8 weeks’ notice of when they intend to return to work.
What rights do employees on Maternity Leave have?
Employees on maternity leave are still entitled to the same rights and benefits which would be applicable were they not on maternity leave, except for monetary wages or salary. Employees can work up to 10 days during their maternity leave, without this affecting their rights. At the end of the maternity leave, the employee is entitled to return to the same job they undertook prior to the maternity leave, or a similar job with similar terms and conditions.
Statutory Maternity Pay (SMP)
In order for an employee to qualify for statutory maternity pay, they must:
- Be continuously employed for at least 26 weeks prior to the 14th week before the EWC,
- Become pregnant and reached the start of the 11th week prior to the EWC,
- Have earnings for the 8 weeks prior to the 14th week before the expected childbirth not less than the lower limit for National Insurance contributions.
Notably, SMP is not conditional upon the employee returning to work after the birth. The employee should give you 28 days’ notice of the date that she expects the SMP to begin.
Period of entitlement
Employees are entitled to SMP for 39 consecutive weeks, which usually starts no more than 11 weeks before birth, or no later than the day after the birth.
For the first 6 weeks, SMP is 90% of the employee’s average weekly earnings. 33 weeks will be paid at either 90% of the employee’s average weekly earnings, or the SMP rate of £140.98, whichever is lower.
Employers cover the cost of SMP. However, you may be able to recoup a significant percentage back from the Government.
Some companies prefer to draft provisions into their contracts for maternity pay, which may provide for a certain amount of weeks at full pay before dropping to SMP. If you know your company does this, it is best to refer to the individual’s contract to determine their pay.
Redundancy and Dismissal
There is a common misconception that women who are on maternity leave cannot be made redundant. Women on maternity leave can lawfully be made redundant, provided there is no suitable alternative work for them, and the correct redundancy procedure has been followed. However, the pregnancy or maternity leave must not be the reason for the redundancy, as this will automatically result in unfair dismissal.