Employers have to meet a number of legal responsibilities when an employee is on maternity leave.

Managed well, the period of maternity leave can improve morale, provide reassurance to your employees during their absence and contribute to a positive employer brand as a business that values its staff. Failure to meet your obligations and poor handling of maternity can, however, see the employer lose valuable members of their workforce, impacting morale and reputation and can result in costly tribunal action. We look at what employers should do to ensure compliance with the rules on maternity leave.

Employee rights on maternity leave

Maternity leave is the statutory right of pregnant employees to take time off from work to have a baby. The first 26 weeks is described as ordinary maternity leave (OML) and the second 26 weeks as additional maternity leave (AML). Employees can take a total of 52 weeks.

There is no minimum length of service to be eligible to take time off for maternity. However, a pregnant employee must notify their employer at least 15 weeks before the baby is due of the following:

• That they are pregnant
• The expected week of childbirth
• The date they intend to start maternity leave

The date an expectant mother intends to start her leave can be any date that is no earlier than the beginning of the 11th week before the baby is due.

During maternity leave, the employee continues to benefit from general employment rights and the benefits under their terms and conditions of employment, such as:

• Fair treatment
• Right to be paid
• Right to be informed of changes to their job and working conditions, e.g. the risk of redundancy
• Right to accrue holiday
• Right to receive appropriate pay rises, bonuses and company benefits, e.g. company car

How much is maternity pay?

During maternity leave, remuneration is dealt with under either statutory or contractual maternity pay provisions.

Maternity pay usually refers to the statutory right to pay during time off work. However, the employee may be entitled to ‘enhanced’ contractual maternity pay if their contract of employment or maternity policy makes provision for this. The contractual entitlement cannot be less than the statutory level of pay.

To be eligible for statutory maternity pay (SMP) the employee must satisfy the following criteria, namely:

• Have been employed continuously by the same employer for at least 26 weeks by the end of the 15th week before the expected week of childbirth
• Have average weekly earnings of at least equal to the lower earnings limit for National Insurance contributions, ie; at least £118 (2019-20 tax year).

SMP is payable for a total period of 39 weeks, where for the first 6 weeks it is paid at 90% of the average weekly earnings, and for the remaining 33 weeks it is paid either at the SMP rate or 90% of the average weekly earnings before tax or £148.68 per week, whichever is lower. The SMP rate is currently set at £148.68 per week (April 2019).

Deductions should be made from the statutory maternity pay to cover tax and national insurance.

The term ‘average weekly earnings’ is used to cover employees who work different hours from week to week or work at varying rates of pay. So for instance, one employee may work a shift pattern which means their weekly working hours vary week to week. Another employer may work overtime on a regular basis, but not every week or a different number of overtime hours each week.

How long is maternity leave?

The maximum length of statutory maternity leave available to eligible employees is 52 weeks, made up of 26 weeks of OML and 26 weeks of AML. Generally, maternity leave cannot start any earlier than 11 weeks before the due week.

Maternity leave must include the two weeks immediately following the baby’s birth. This is a compulsory period of maternity leave. For employees working in a factory, this is extended to the four weeks immediately after the birth.

Where the employee is off work due to a pregnancy-related illness in the four weeks immediately preceding their expected week of childbirth, the employer can start the maternity leave automatically.

Maternity leave: discrimination

In addition to general employment rights, employees on maternity leave also benefit from enhanced protections during the ‘protected period’.

The protected period starts with their pregnancy and takes them through maternity leave. The law continues to protect the employee after this period where an action or decision, made within the protected period, relating to the pregnancy or maternity or due to her sex has resulted in unfavourable treatment.

Under the Equality Act 2010, it is unlawful to discriminate against an employee or treat them unfairly or unfavourably because of pregnancy or maternity. The law classifies pregnancy and maternity discrimination as either discrimination for unfavourable treatment or victimisation.

Unfavourable treatment

Employees, workers and job applicants are protected against discrimination in the workplace by reason of their pregnancy or maternity leave. By way of example, they should not be disadvantaged through the employer’s policies, procedures, rules or practices, through unfair treatment due to pregnancy or maternity or suffer unwanted behaviour because of pregnancy or maternity.

Where an employee can show they have suffered such treatment, they may have grounds to bring a tribunal claim for discrimination against their employer. Importantly, when bringing a pregnancy or maternity discrimination claim, it will not matter if other employees are subject to the same treatment as the employee will not need to compare their treatment with how others are treated.

Victimisation 

Victimisation relates to a form of discrimination where an individual suffers detriment in the workplace as a result of trying to exercise their rights under the Equality Act. The employee would need to show they have suffered disadvantage, damage, harm or loss after having made an allegation of discrimination, supporting a complaint of discrimination, giving evidence relating to a complaint about discrimination, raising a grievance concerning equality or discrimination or doing anything else for the purposes of (or in connection with) the Equality Act, such as bringing an employment tribunal claim of discrimination. Victimisation also applies where the employee is suspected of doing one of these things or where it is believed they will do so in the future.

What is shared parental leave?

Shared parental leave (SPL) allows both parents to share the mother’s entitlement to maternity leave, together with her right to statutory maternity pay through shared parental pay (ShPP).

Where eligible for SPL and ShPP, parents can share up to 50 weeks of leave and up to 37 weeks of pay during the first year after the child is born. The leave does need not be taken altogether but can be used in ‘blocks’, separated by periods of work. Parents can also choose to be off work together, or to stagger their leave.

To be eligible for SPL and ShPP, as with maternity leave, the employee will need to give reasonable notice and also meet the relevant work and pay criteria:

• Have been employed continuously by the same employer for at least 26 weeks by the end of the 15th week before the expected week of childbirth
• Stay with the same employer while you take SPL
• Be classed as employees and not workers
• Each earn on average at least £118 a week.

The criteria can however differ depending on how the leave will be used, for example, if sharing the leave equally or where the employee’s partner is taking all of the leave. Taking advice can ensure you proceed correctly in line with how the employee is choosing to take their shared leave.

Redundancy during maternity 

Where the employee’s role becomes at risk of redundancy while they are off on maternity, they must be consulted in the same way as other affected employees. Those on maternity leave should not be disadvantaged or this may give rise to a claim for discrimination.

If there is the possibility of alternative employment, it must be offered to the employee on maternity leave before it is offered to other employees. If there is no suitable alternative work, the employee could be made redundant although employers should proceed with caution to avoid issues such as unfair dismissal claims:

• The pregnancy or maternity cannot be a reason for redundancy
• The redundancy must be genuine
• Fair redundancy procedures must have been followed correctly
• Redeployment has been considered but is not possible

Return to work rights

An employee on maternity leave for up to six months has the right to return to the same job, pay and working conditions as before their maternity leave, as long as their job still exists.

Where the maternity leave taken lasts longer than six months, the employer has the same rights unless it is not ‘reasonably practicable’ for them to return to that role, in which case, they must be offered similar employment with pay and working conditions that are considered equally favourable. In demonstrating what is deemed to be reasonably practicable, the employer must prove that they have not discriminated against the employee in any way and that they have sound reasons for making the change.

An employee on maternity leave has the right to ask for flexible working which must be considered by their employer in line with the statutory flexible working rules.

Maintaining contact during leave will be important to help manage expectations and keep employees informed of workplace developments, such as restructuring, any promotion or job opportunities, as well as any social events. Agreeing a method of regular communication can be helpful to maintain reasonable levels of communication during leave and support with making arrangements for the employee’s return to work.

Maternity leave: keep in touch days

KIT stands for ‘keeping in touch’. It is a way that an employee may maintain contact with their employer and job by working a part or full day during their maternity leave. It should be noted that a part-day worked as a KIT day still counts as one KIT day.

An employee may work up to a maximum of ten KIT days during their maternity leave where agreed with their employer. The terms of the KIT days should be agreed in advance with the employee covering issues such as:

• Dates to work
• Working hours – whether a full day or half-day is agreed, it will count as a full KIT day
• Duties or activities the employee will carry out during the KIT day, for instance, their standard duties, a reduced version of their duties, completely different duties to their normal job because it is not suitable during maternity leave, or a training session related to work
• Payment terms for KIT days worked

KIT days are not a legal entitlement. It will be for you to agree to the KIT days with the employee. Likewise, you cannot oblige an employee to work KIT days, nor can you penalise them for not working KIT days as this could be considered discrimination.

Where an employee on maternity works more than ten KIT days, their maternity leave and pay will automatically be ended.

Avoiding disputes and tribunal claims

Employees may have recourse to make a formal complaint or legal action if fail to meet your duties during maternity leave, such as paying the full entitlement, or where the employee can show they have been victimised or subject to unfair treatment because of their pregnancy or maternity leave.

The most effective way to avoid disputes is to have a robust maternity policy in place which sets out the expectations and requirements on both the employer and the employee.

A maternity policy should be written in consideration of any related legislation to suit the business’ needs while supporting employee wellbeing and could include:

• Who the policy applies to
• Definitions of key terms to avoid misinterpretation
• Eligibility for maternity leave and pay
• Notification of pregnancy: when and how the employee should notify the employer
• What the pregnant employee is entitled to, e.g. time off for medical appointments
• Maternity leave arrangements and conditions, e.g. length of maternity leave
• Differences between ordinary maternity leave and additional maternity leave
• Statutory maternity pay
• Contact arrangements during maternity leave
• KIT (keeping in touch) days if offered by the employer
• Return to work: procedure and rights of the employee
• Shared parental leave
• Employee rights once they have returned to work

Any maternity policy should be supported with training of relevant personnel, including HR and line managers to ensure effective implementation and handling of pregnancy, the maternity leave and return to work matters.

Need assistance?

Effective management of maternity leave requires careful planning and an infrastructure that supports both compliance with your duties under law and the wellbeing of your employees.

DavidsonMorris are experienced employment law specialists offering guidance and support to employers in relation to maternity leave, pay and rights. To discuss management and compliance with your duties, contact us.

Maternity leave FAQs

Last updated: 17 September 2022