In this guide for employers, we look at what the law says about employees working during maternity leave, and when this can impact their maternity entitlements.
Employee maternity rights
All qualifying employees have a statutory right to 52 weeks’ maternity leave. This is divided into ordinary maternity leave, covering the first 26 weeks, and additional maternity leave for the last 26 weeks. An employee does not have to take the full 52 weeks, but they must take 2 weeks’ leave following the birth of the baby, or 4 weeks if they work in a factory, giving them the opportunity to recover after childbirth and to bond with their infant.
Usually, the earliest an employee can start their period of maternity leave is 11 weeks before the expected week of childbirth. Leave can also start the day following the birth if the baby is early, or automatically if the employee is on sick leave for a pregnancy-related illness in the 4 weeks before the week that the baby is due, running Sunday to Saturday.
Regardless of when maternity leave begins, the employment rights of an employee are protected throughout this period of statutory leave. This includes the right to pay rises, and to any improvements in terms and conditions given during their leave, as well as to accrue statutory holiday entitlement and to take any holiday that they have built up before or after their maternity leave. Employees also have the right to return to their job if they take only 26 weeks of maternity leave. If an employee takes additional maternity leave, they will still have the right to their job or a similar job if it is no longer possible to give them their old job, where similar means the job has either the same or better terms and conditions.
Additionally, the employee may be entitled to statutory maternity pay (SMP) for up to 39 of the 52 weeks of their leave. This is payable at 90% of their average weekly pre-tax earnings for the first 6 weeks, followed by either £156.66 or 90% of their average weekly pre-tax earnings, whichever is lower, for the next 33 weeks. An employee can get SMP from 11 weeks before the week in which their baby is due, if they have stopped work by then.
Provided the employee meets the qualifying criteria for SMP, including a continuous employment and minimum earnings requirement, the employer must pay the employee at least the SMP rate, but they can offer more than the statutory minimum. This is called enhanced maternity pay. However, all new and expectant mothers are entitled to 52 week’s statutory maternity leave, whether or not they also qualify for SMP or enhanced pay, but if the employee subsequently decides not to take their full 52 weeks’ leave, they must give the employer at least 8 weeks’ notice to return to work early.
Can an employee work during maternity leave?
At the crux of this question is whether an employee can work while on statutory leave without bringing their maternity leave or pay to end prematurely. The general rule is that working during maternity leave, or any other form of statutory family leave, such as shared parental leave or adoption leave, will have the effect of bringing to an end the leave period and stopping the statutory pay. However, there are a number of exceptions to this general rule, including:
- keeping in touch (KIT) days
- working for another employer
- self-employed work
Doing work your employer during maternity leave – ‘keeping in touch’ (KIT) days
Employees can work a maximum of 10 paid days without their period of statutory maternity leave or pay stopping. These are known as keeping in touch (KIT) days, designed to help employees keep up-to-date with any changes that may impact their job role and help ease their eventual return to work, including undertaking any training courses or attending important meetings. This means that the employer and employee can agree up to a maximum of 10 KIT days during which the employee can work — provided these days do not fall within the first 2 weeks following the birth of the child, or 4 weeks if they work in a factory — without this affecting the employee’s entitlement to either leave or SMP.
The employee does not have to agree to work any KIT days, where they cannot be forced to do so. Equally, the employee cannot insist on working during maternity leave. KIT days can only take place if both parties want and agree to them, although where an arrangement is put in place for the employee to work either the full or part of their maximum 10 KIT day allowance, this will not affect their entitlement to either leave or pay. However, KIT days cannot be used by an employee to extend their period of statutory maternity leave.
The employer and employee will need to agree when a KIT day is to be taken, what type of work the employee will do on that day and how long the KIT day will last, where a day’s work will be the normal hours or shift patterns at the workplace. This means that if the employee normally works 12-hour shifts, a KIT day could run for 12 hours. However, whether the employee works a full day, a half day or even just an hour, this will be counted as a full day for the purposes of calculating the total number of KIT days undertaken.
Once the employee has worked all 10 days, they will then lose a whole week’s SMP for any week in which they work an extra KIT day. Still, the employee should normally be paid for working any KIT days, although how much they will get will depend on the terms of their contract of employment, provided this is at least the national minimum wage.
The employee has no automatic right to pay over and above statutory maternity pay for working a KIT day, so any extra pay is a matter for negotiation and agreement between the employer and employee. However, to incentivise employees to work KIT days, many employers will pay the employee’s contractual rate of pay, minus any SMP, or give them the equivalent paid time off in lieu, to be used on their return from maternity leave. If the employee is unhappy with the rate of pay the employer is offering for any KIT day, they are under no obligation to accept it, and can decline to work any further KIT days. In these circumstances, the employer cannot lawfully penalise the employee for deciding not to accept their payment proposal or declining to work any or all of their available KIT days.
For employees on adoption leave, they can also work up to 10 KIT days without this affecting any entitlement to leave or statutory adoption pay (SAP). For employees on shared parental leave, they can work up to 20 ‘shared parental leave in touch’ (SPLIT) days without their leave or shared parental pay (ShPP) stopping. The 20 SPLIT days are in addition to the 10 KIT days already available to those on maternity or adoption leave. This means that an employee can take their full 10 KIT days while they are on maternity leave, and take an additional 20 SPLIT days during any subsequent shared parental leave.
Working for another employer during maternity leave
If an employee has more than one job in the 15th week before the week their baby is due, known as the ‘qualifying week’, they may be entitled to statutory maternity leave and pay from both employers. In these circumstances, the period of maternity leave and SMP will be calculated separately for each one, provided the employee satisfies the qualifying conditions for each job. Where the employee is entitled to SMP from both employers, the employee will also be allowed to work up to a maximum of 10 KIT days for each employer.
If a new or expectant mother qualifies for SMP from two or more employers, they can take their maternity leave and SMP at different times, for example, if they want to work closer to the birth in one job or go back to work earlier. This means that the employee’s maternity pay periods with each employer would then start and end at different times, although this would not affect their entitlement to leave and pay from the other.
An employee can also start work for a new employer and still receive SMP from their old employer before the birth. However, once their baby has been born, the employee cannot continue to get SMP from their old employer if they do work for a new employer, unless they were employed by the new employer in the 15th week before their baby was due. In these circumstances, the employee must tell their old employer to stop paying their SMP.
Self-employed work during maternity leave
A new or expectant mother who qualifies for SMP in an employed role can undertake work on a self-employed basis, both before and after the birth, without losing their right to statutory maternity leave or pay. This also applies to other forms of leave and pay.
However, it would be a risky strategy for an employer to attempt to re-employ an individual who is on statutory maternity leave and in receipt of SMP on a freelance basis. As such, the rules around self-employment cannot be used to allow an employee to come back to work early while still benefitting from ongoing statutory maternity pay, as this would not be classed as genuine self-employment, especially if they would be undertaking exactly the same work as before. The rules around self-employment are really only designed to help the employee top up their maternity pay during their period of maternity leave, such as running an online business working from home or doing consultancy work.
The employee will also be bound by the terms of their employment contract, where there may be contractual provisions prohibiting employees from undertaking secondary employment, including self-employment, either without permission or at all.
Importantly, if an employee does not qualify for SMP from an employed job, they can instead claim maternity allowance from the government if they are also self-employed. They will not, however, be able to claim SMP and maternity allowance at the same time.
Can an employee take a second job during maternity leave?
Except as set out above, where an employee already has a second job when they start their statutory maternity leave and pay, working for a new employer during maternity leave who did not employ them in their qualifying week will bring their right to SMP to an end.
In some cases, taking secondary employment while on maternity leave can also potentially amount to a breach of the contract of employment, where the contract prohibits an employee from working for another employer or undertaking self-employment. However, if the employee would normally be allowed to take on a second job under the terms of their employment contract, the contract cannot include a specific clause preventing the employee from doing so during maternity leave, as to do so would be classed as discriminatory.
Does working during maternity leave affect enhanced contractual pay?
If the employer has an occupational maternity pay scheme in place, provided any conditions attached to enhanced maternity pay are not in any way discriminatory, the employer can impose all sorts of qualifying conditions on the right to a higher rate of pay. This can include prohibiting the employee from working during maternity leave, although this will typically exclude the 10 KIT days, which should remain open to negotiation.
In many cases, employers recognise the incentives in providing employees with enhanced maternity rights, offering full pay during maternity leave for far longer than the 6-week statutory minimum. However, in return, employers may want these employees to get the rest that they need, without the distraction of secondary or self-employment. This means that, depending on the terms of the employment contract, the employee may be prevented from taking a second job or working on a side business during maternity leave.
However, the employer will only be permitted to impose a contractual prohibition on secondary employment during maternity leave if all employees are prohibited from taking a second job, and not just new and expectant mothers.
Effective management of maternity leave requires careful planning and policies that support 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 your maternity management and legal compliance, contact us.
Working during maternity leave FAQs
Are you allowed to work while on maternity leave?
The general rule is that working during maternity leave will bring to an end the statutory leave period and statutory maternity pay. However, there are exceptions to this rule, including keeping in touch (KIT) days and self-employed work.
Can employee take on another job while on maternity leave?
If an employee takes on a second job while they are on maternity leave, this may end their entitlement to statutory maternity pay, unless they are working on a self-employed basis, for example, running an online business from home.
Last updated: 4 December 2022