Maternity and Paternity Leave
Employment and parenthood
There are now 4 basic rights relating to maternity, all of which are covered here. They are:
- not to be dismissed on grounds of pregnancy or childbirth
- right for a mother to return to work after maternity leave
- right to maternity pay
- time-off for ante-natal care
These rights are quite extensive and compliance can be very difficult and disruptive to employers. The law therefore places a heavy burden on the employee to comply with strict procedures and timetables.
Not to be dismissed on grounds of pregnancy or childbirth
All employees, regardless of how long they have worked for their employer, are entitled not to be dismissed simply because they are pregnant, or have given birth. In fact any such dismissal is automatically unfair.
Any other form of discrimination against a female employee for the sole reason of being pregnant or taking maternity leave is also unlawful. This might be:
- changing her contract without her consent (i.e. reducing working hours)
- giving unsuitable work
- writing unfavourable staff reports
- treating time off for pregnancy as a disciplinary issue
Right to maternity leave
Working mothers who are classed as 'employees' have the basic statutory right to a certain amount of maternity leave. However, those classed as 'workers' and the self employed do not have a statutory right to take maternity leave.
In addition to statutory entitlements, some individual employers may also offer their own maternity schemes.
The company you work for may have their own system which is more generous than the standard statutory scheme. Check your contract of employment to see if this is the case. Note that a company cannot offer you less than the statutory scheme.
Statutory Maternity Leave
All employed mothers are entitled to 52 weeks of Statutory Maternity leave, up to 39 weeks of which can be paid. This 52 week period is divided up equally into 26 weeks of Ordinary Maternity Leave and 26 weeks of Additional Maternity Leave. During this period the woman's contract of employment is considered to continue, even though she is not physically at work.
In order ensure that you qualify for Statutory Maternity Leave it is essential that you give the required details to your employer at the right time. Before the 15th week before the baby is due, you must inform the employer of the pregnancy and tell them the expected week of the birth and when you intend to start taking maternity leave. As long as this is done, all employees are entitled to statutory maternity leave irrespective of their standing in the company (how long you’ve been there, how much you get paid and how many hours you work).
The earliest a mother can choose to begin her maternity leave is the eleventh week before the expected week of childbirth, which is around 29 weeks into the pregnancy. Any date thereafter can be chosen for the maternity leave to commence – it is even possible to work until the date of birth.
The maternity leave can however be automatically triggered by any instance of missing work because of a pregnancy-related illness which occurs after the beginning of the fourth week before the expected week of childbirth. Naturally the same will happen if the baby is actually born before the day which was originally chosen to start the maternity leave.
Right for a mother to return to work after maternity leave
Provided she has satisfied all the requirements for maternity leave, an employee returning after her 26 weeks of Ordinary Maternity Leave is entitled to return to the job in which she was employed before she left on maternity absence, and on terms and conditions not less favourable than those she would have been on if she had not been away.
The situation is slightly different for those who have extended their time through Additional Maternity leave. In this case the employer is not compelled to reinstate the employee in the same job if they can show that this is not reasonably doable (for example if the position is no longer in existence). However, the employer still must offer the employee alternative work with same working conditions as those prior to the period of maternity leave.
Notice of your intention to return must be given to the employer. This is not absolutely necessary if you take the full 52 weeks, as this is what most employers will assume you intend to do. Nevertheless, it may be advisable to do so.
If intending to come back before the 52 weeks have passed, however, you are obliged to give your employer 8 weeks’ notice. If this is not done then they can insist that do not return until 8 weeks have elapsed.
Right to Maternity Pay
Statutory Maternity Pay (SMP) was introduced in 1987. To qualify the employee needs to satisfy the following conditions:-
- she must have been earning more than the lower limit for making NI contributions
- she must have been continuously employed with her employer for a minimum period of 26 weeks ending with the 15th week before the expected date of birth
- she must give the employer medical evidence of the expected date of birth, and give them at least three weeks' notice of her intention to be absent from work
- she must have reached the 11th week before the expected week of birth, or have recently given birth
- she must have stopped work
If she can satisfy all these conditions then she will qualify for SMP at the higher rate (90% of her normal week's pay) for six weeks. Thereafter she will be paid whichever is lower of the standard rate of £136.78 or 90% of her average gross weekly earnings for the remainder of the maternity pay period, which can be up to 33 weeks.
If an employee does not qualify for SMP she may claim the state maternity allowance.
Time-off for ante-natal care
A pregnant employee has the right not to be unreasonably refused paid time off work to attend ante-natal care recommended by a doctor, midwife or health visitor. The time off must be paid at the employee’s normal rate, and all pregnant employees are entitled to this, regardless of how long they have served the company.
It may however still be preferable to try to make your ante-natal appointment outside of working hours to avoid disruption to your company.
From the second appointment the employer can demand to see evidence that the appointments are being attended; this is usually in the form of a medical certificate vouching for the pregnancy along with an appointment card.
Expecting fathers or those intending to raise a child with its mother may be entitled to Statutory Paternity Leave, and may also qualify for Statutory Paternity Pay.
These are available to both biological fathers and husbands, partners or civil partners of the mother. Those who are adopting are also eligible.
Alternatively, as with maternity leave, certain employers may offer more generous leave packages for fathers. Check the terms of your contract.
Statutory Paternity Leave
To qualify for Statutory Paternity Leave, you must be an employee. You must have been continuously employed by your current employer for at least 26 weeks before the end of the 15th week before the baby is due, and you must continue to be employed by this employer until the baby is born. You must be taking the time off to take an active role in the upbringing of the child.
Strictly, you must make a declaration that:
- you are the biological father, married to or in a civil partnership with the mother, or living with the mother in an enduring family relationship, but are not an immediate relative
- you will have responsibility for the child’s upbringing
- you will take time off work to support the mother or child.
Paternity leave can currently only be taken for a maximum of two weeks. It cannot be taken before the birth of the baby and must finish by the 56th day after the date of the birth. If the full two weeks are taken, they must be continuous. Otherwise one week’s leave can be taken. The weeks do not necessarily have to begin on a Monday, i.e. it is possible to start your leave on any other day of the week and return on that same day 1 or 2 weeks later.
As with maternity leave, plans for paternity leave must be discussed with your employer, and you must inform them of when you wish to take your leave before 15th week before the baby is due. If you change your mind then you must give your employer 28 days’ notice.
In the event of the baby being born early, paternity leave must be taken within a period stretching from the birth to eight Sundays after the week when the baby was originally due.
Statutory Paternity Pay
Statutory Paternity Pay is payable for a maximum of two weeks and the amount paid will be whichever is the lower of 90% of your average weekly earnings and the standard rate of £136.78. To qualify for Statutory Paternity pay, you must meet all the conditions of Statutory Paternity Leave.
Statutory Paternity Pay is paid in the same manner as regular pay (through the employer at the usual time) and will be subject to National Insurance and tax deductions.
If claiming Statutory Paternity Pay, you may wish to fill in the SC3 form which can be downloaded here from the HM Revenue & Customs Website. The employer may ask to see it as confirmation that you are entitled to the pay.
Fathers and ante-natal care
Unlike mothers-to-be, fathers do not currently have the right to take paid time off to attend ante-natal care. The Government does however encourage employers to allow this where practical to do so. Many employers now acknowledge the importance of the birth of a child and let their employees either take paid time off or make up the time later.
Additionally, there are currently proposals before parliament, contained in the Children and Families Bill, that will allow expectant fathers, who are employees, to take a unpaid time off to attend two ante-natal appointments, up to a maximum of six and a half hours for each appointment.
If you have been denied Statutory Maternity Pay or Statutory Paternity Pay or you don’t think you are receiving the right amount, and you believe your employer’s decision is wrong, then firstly you should ask your employer for their reasons and demand an explanation in writing.
Registering a dispute
If you find that you remain at loggerheads with your employer over your maternity or paternity pay then you should call the HM Revenue & Customs helpline on 0845 302 1479, who will be able to provide advice and allow you to ascertain whether or not you have a case against your employer. If so, you can take your case further to the HMRC Statutory Payments Disputes Team, whose contact details should be given to you.
To register a dispute with HMRC you need to give the following personal details:
- full name
- date of birth
- National Insurance number
You will also need to provide your employer’s name and contact details. After all these details have been submitted you will need to provide an explanation of the circumstances and back this up by producing any correspondence between you and the employer during the dispute over maternity or paternity pay. The dispute must be registered no more than six months after the date when you believe that your first payment should have been received.
Do not register a dispute with HMRC if you have not already unsuccessfully tried to resolve the disagreement with the employer.
How your dispute is handled
The HMRC’s disputes team will attempt to resolve your dispute by contacting your employer, probably be telephone. If this fails they will write to the company and perhaps to you in order to obtain information which will help them arrive at a decision.
After the HMRC has made a decision, if it meets the approval of both the employer and employee then the employer should begin paying you by your next payday. If the employer or employee (or both) disagrees with the decision then you must inform HMRC no more than 14 days after the decision was issued. Subsequently the case will be passed on to an HMRC Decision Maker, who will enforce a more formal decision. This decision can be appealed against by the employer or employee but no payments will be made until the appeal process is completed.
A specialist solicitor will be able to give you one-to-one personalised advice on maternity or paternity disputes.
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