Maternity law - your questions answered

Xpert HR smallbusiness answers your common questions on maternity law.

How much maternity leave can employees take?

All pregnant employees, regardless of how long they have

been working for their employer, are entitled to take a full

year's maternity leave.

This is made up of 26 weeks 'ordinary' maternity leave and 26 weeks 'additional' maternity leave.

Do all pregnant employees qualify for maternity pay?

To qualify for statutory maternity pay an employee must have been working for her employer for a continuous period of at least 26 weeks, ending with the 15th week before the expected week of childbirth. For these purposes, a week runs from Sunday

to Saturday.

Where the employee started work during the first week of the 26-week period, it is sufficient for her to have begun work at some point during the week, even if it is the last day.

The continuous employment must extend into the 15th week before the expected week of childbirth, but one day's employment into the week will suffice.

She must also have average weekly earnings of at least the

lower earnings limit for national insurance purposes, which are currently £102.

What rights do pregnant employees have to time off work

for antenatal care?

They have the right to paid time off to attend appointments for antenatal care on the recommendation of a registered medical practitioner, registered midwife or registered nurse. The employer can ask the employee to produce an appointment card, unless she is requesting time off for her first appointment.

 

When an employee tells her employer she is pregnant, what does the employer have to do?

At least 15 weeks before the week her baby is due, the employee needs to tell her employer that she is pregnant, when her baby is due and when she wants to start her maternity leave. The employer must respond in writing within 28 days, letting her know the date when her maternity leave will end.

What is the earliest a woman can start her maternity leave?

The earliest she can start her maternity leave is 11 weeks before the week her baby is due (unless the baby is born prematurely).

Can illness trigger the start of a woman's maternity leave?

Yes, but only if she is off sick with a pregnancy-related illness in the four weeks before the week when her baby is due.

Can an employee come back to work straight away after having a baby?

No, she cannot work in the two weeks after the birth (four weeks for factory workers).

Can employers contact employees on maternity leave and ask if and when they plan to come back to work afterwards?

They can make informal enquiries, but an employee does not have to respond. If she plans to return to work after her full year of maternity leave, she can simply turn up to work on the day after her maternity leave ends. If she does not want to take her full year's leave, she must give the employer at least eight weeks' notice of the date she wants to return. If she does not plan to come back at all, she must give the employer the notice set out in her contract of employment. This should be given so that it expires not later than the day before the employee's due date of return from maternity leave.

What happens to an employee's holiday entitlement during maternity leave?

It continues to accrue. All employees are entitled by law to at least 5.6 weeks' paid annual holiday - and employers' terms may be more generous. Maternity leave usually spans two holiday years, so it is advisable for employers to ensure employees use all their holiday entitlement for the first of the two holiday years before they start maternity leave. When an employee returns to work during the next holiday year, the employer needs to let her take her full annual entitlement at agreed times during the year. It is what the law requires.

How much is statutory maternity pay and how long is it payable for?

It is payable for 39 weeks, which means the last 13 weeks of maternity leave is unpaid. She is entitled to 90% of her average weekly earnings for the first six weeks, then £128.73 a week for the remaining 33 weeks (or 90% of her average weekly earnings if this is less than £128.73).

Can employers recover the statutory maternity pay that they pay out?

Most employers can reclaim 92% of all statutory maternity pay that they have paid out from the Government. Small employers can reclaim 100% of all statutory maternity pay paid out, plus another 3% to compensate for the secondary national insurance contributions that are payable on statutory maternity pay.