Maternity issues
and SMP
Given the number of changes to maternity
rights in recent years, employers could be
forgiven for not knowing where they stand
when one of their employees is pregnant.
But with employment tribunals making large
awards against employers who ignore the rules,
you simply cannot afford to stick your head in
the sand.
You need to be clear about the rights of the
employee and your responsibilities as an
employer if you are going to minimise disruption
to your business and prevent disputes arising
when women leave to have children.
This briefing covers:
◆
Ordinary maternity leave and additional
maternity leave.
◆
Statutory maternity pay.
◆
How to avoid the legal pitfalls.
Rights of the employee
Every female employee has the right to ordinary
maternity leave and many have the right to
additional maternity leave (see 2 and 3).
The employee has:
A The right not to be dismissed because
of pregnancy, maternity leave or childbirth
(see 5A).
B
The right to return to her job.
◆
You must consider any request to return
to work part time. If it is not possible,
you will need to explain why, with
substantial reasons.
◆
Refusal to offer a part-time option may
amount to indirect sex discrimination, as
family responsibilities can make it harder
for women to work full time than men. It
may also fall foul of the Flexible Working
Regulations 2003.
◆
C
Recent cases have emphasised that there
are few jobs that really cannot be done on
a part-time or job-share basis, including
senior management roles.
The right to paid time off for ante-natal
care and training, including clinic visits and
relaxation and parentcraft classes.
◆
You can ask to see an appointment card
or similar evidence.
D The right to all her normal terms and
conditions of employment, except wages
or salary, while on ordinary maternity leave
— though not while on additional maternity
leave (see 3).
For example, while on ordinary maternity
leave, she retains her rights to continued
build-up of holiday entitlement, health
insurance and the use of a company car.
E
The right to be offered suitable alternative
work, or normal pay for not working, if she
has to be suspended because of health and
safety considerations.
◆
If your health and safety assessment
shows risks which might affect a pregnant
woman or her baby, and they cannot be
removed, you must take action to ensure
your employee is not exposed to them.
You must carry out this risk assessment if
you employ any women of childbearing
age, whether they are pregnant or not.
Ordinary maternity leave
A Every employee who becomes pregnant is
entitled to 26 weeks of ordinary maternity
leave.
B
(See Health and safety risk assessment,
LA 4.)
Preserving your investment
A person who has worked for you successfully
for more than a couple of years may well have
built up specialist skills, knowledge of your
markets or personal contacts with your
customers and suppliers. You have made an
investment that it may pay you to nurture.
Under the Flexible Working Regulations 2003,
you are obliged to give serious consideration
to any requests for flexible working — for
example, working different hours or working
from home (see The law on flexible
working, HR 38). But if encouraging women
to return after having children is important to
your business, you may be able to offer other
ways to make it easier for them to combine
work and motherhood.
A Consider encouraging a sense of loyalty by
paying more during maternity leave than
you are obliged to by law.
In return, you may stipulate that the
woman must work for, say, one year after
coming back, failing which she will be
obliged to repay any company maternity
pay in excess of statutory maternity pay.
B
C
Consider introducing job-sharing, where
there are suitably qualified sharers.
Employees can now receive up to £50 a
week of childcare (or childcare vouchers)
free of tax and NI contributions, provided
that the contract is with an approved
childcarer.
Compared with the risks of recruiting untried
staff and the costs of training new people,
these options may make sound business sense.
The entitlement is irrespective of the
employee’s length of service.
◆
Part-time employees have the same right
to maternity leave as full-timers.
◆
Many pregnant women will also qualify
for additional maternity leave (see 3).
The employee must notify you, in writing
if requested, that she is pregnant, and give
notice of several key dates. She must:
◆
Tell you her expected week of childbirth
(the EWC). You can reasonably ask your
employee to provide confirmation of the
EWC from her GP or midwife.
◆
Choose when to start her maternity leave,
any time from the 11th week before the
EWC, and inform you of the start date by
the 15th week before the EWC or at least
28 days before her leave is due to begin.
Depending on the circumstances, leave
may even start on the day of the birth.
◆
Tell you when she has had the baby.
◆
Give 28 days’ notice if she wants to return
to work before her ordinary maternity
leave period is up.
Ordinary maternity leave is automatically
triggered early with the birth of a baby
that arrives prematurely, or if the woman
becomes ill with a pregnancy-related illness
in the four weeks before the baby is due.
C
You must write to her within 28 days of
being told when she intends to start
maternity leave, setting out the date on
which her maternity leave will end.
◆
If this is the date on which she intends
to return to work, she need do nothing
more.
D The law lays down time limits affecting a
woman’s return to work after childbirth.
◆
Consider providing, or contributing
towards the cost of, crèche facilities.
◆
◆
E
It is illegal for a woman to go to work
within two weeks of giving birth (four
weeks for factory workers).
If a woman’s baby is born right at the end
of the maternity leave period (for example,
if the due date was miscalculated),
ordinary maternity leave is extended for
two weeks.
It is automatically unfair dismissal if you
dismiss an employee during her maternity
leave period, or select her for redundancy,
wholly or mainly because she is pregnant,
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has taken maternity leave or has given birth
(see 5A).
F
B
If she meets the qualifying conditions, a
woman whose baby dies, or is stillborn,
after the 24th week of pregnancy, is still
entitled to ordinary maternity leave,
additional maternity leave and statutory
maternity pay (see 4).
◆
C
Additional maternity leave
A Every pregnant woman with 26 weeks’ full
or part-time service (up to the 14th week
before the EWC) also has the right to
additional maternity leave.
◆
Additional maternity leave starts at the
end of ordinary maternity leave and runs
out 26 weeks later.
◆
Women on additional maternity leave are
guaranteed that certain of their normal
terms and conditions will continue to
apply.
For example, notice periods, compensation
for redundancy and discipline and
grievance procedures.
◆
After her additional maternity leave, the
employee is entitled to come back to the
same kind of job, or to a suitable
alternative, where this is not possible.
There is a small business exemption, for
firms with five employees or fewer, where it
is not practical to reinstate an employee
after additional maternity leave.
◆
In such cases, if there is no other suitable
work available, you do not have to
re-employ her.
◆
You may need to prove to a tribunal that
it was not reasonably practicable to offer
a suitable job.
D If the employee is unfit to return, she will
be regarded as off sick and may receive sick
pay, if she qualifies.
◆
Contractual matters (eg holiday and
pension benefits) may be negotiated and
agreed between the employer and
employee.
However, the employee remains entitled to
accrue the statutory entitlement of four
weeks’ paid annual leave.
Paternity leave
A Fathers are now entitled to take paid time
off at or around the time of their child’s
birth.
◆
They can take either one full week, or
two continuous full weeks.
◆
This leave must be taken within 56 days
of the birth.
◆
B
They are entitled to statutory paternity
pay of £102.80 a week (or 90 per cent of
average pay if lower). The employer can
set this off against NI contributions.
If the sickness absence continues and you
eventually wish to dismiss the employee,
you must implement your full dismissal
procedure, right from the very beginning
(see Dismissing employees, HR 5).
You must totally ignore the additional
maternity leave and only take account of
subsequent absences, or the dismissal will
probably be seen as unfair and as sex
discrimination.
Maternity pay
Many pregnant women on ordinary maternity
leave are entitled to statutory maternity pay
(SMP).
This is treated as income and is paid net of
income tax and National Insurance contributions.
A To qualify for statutory maternity pay, a
woman must have completed 26 weeks’
service by the 15th week before the week
the birth is due. This is known as the
‘qualifying week’.
◆
She must have average weekly earnings of
at least £79, in the eight weeks up to and
including the qualifying week.
◆
She must still be pregnant, or have had
her baby, by the 11th week before the
expected week of childbirth.
Employees must fulfil certain criteria.
◆
A suitable alternative must give her
equivalent pay and conditions, be
suitable for her and be appropriate in
the circumstances.
They must have worked for you
continuously for 26 weeks by the end of
the 15th week before the EWC.
◆
They must have (or expect to have)
responsibility for bringing up the child.
◆
◆
They must give you adequate notice (at
least 28 days).
She must have stopped working, or taken
ordinary maternity leave.
◆
She must have provided evidence of the
expected date of birth.
See Holidays and unpaid and statutory
leave, HR 37.
B
There are two rates of SMP.
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◆
◆
A woman entitled to SMP receives the
higher rate, equal to 90 per cent of her
average weekly earnings, for the first six
weeks.
unlimited compensation award, including
an award for injury to feelings.
B
She then moves on to a fixed rate of
£102.80 (in 2004/05) or 90 per cent of
her average earnings if lower for up to 20
more weeks.
If you are making someone redundant
during pregnancy or maternity leave, you
must be able to show that your selection
criteria are absolutely objective and fair.
◆
These are set rates and are not altered in the
case of multiple births.
C
Employees not entitled to SMP may qualify
for maternity allowance.
◆
Women who earn between £30 and £79
a week, and have worked (or been selfemployed) for at least 26 weeks in the 66
weeks up to the week in which the baby
is due, can claim maternity allowance for
up to 26 weeks.
C
D The Government compensates employers
for making SMP payments.
◆
◆
Small businesses can claim back more SMP
than they pay out.
You can claim 104.5 per cent if you are a
small enterprise with total NI payments
(employer’s and employees’ combined) of
less than £40,000 a year.
Larger employers can reclaim 92 per cent
of the gross SMP paid.
You can claim back the SMP by making
deductions from NI contributions you would
normally forward to the Inland Revenue.
Deciding not to employ or promote a
woman because she is pregnant — or
because she may become pregnant — is sex
discrimination. (See Discrimination, HR 24.)
Covering the job
You may need someone else to cover for an
employee who is away on maternity leave.
A If you take on a replacement, inform the
individual, in writing, at the start, that his or
her employment will be terminated when
your employee returns from maternity leave.
◆
You must maintain detailed records of SMP
and keep them for at least three years.
E
SMP stops if the employee does any work,
or is taken into custody, or dies.
F
Some employers offer enhanced maternity
pay to some or all of their female
employees (see box, page 2).
Employment and dismissal
A Dismissing somebody is automatically
unfair and almost certainly discriminatory
if the dismissal is due to pregnancy, or any
reason connected with pregnancy.
◆
◆
◆
B
If a tribunal finds your action amounted
to sex discrimination, it can make an
This is specifically covered in the
Employment Relations Act and will count
as a fair dismissal.
For some tasks, using a temp agency will
allow you to buy in cover flexibly.
Getting help
Because of new legislation and the effects of
case law, printed material on maternity issues
quickly goes out of date.
A The best up-to-date information is often
available from the telephone helplines run
by Acas and the Department for Work and
Pensions.
The employee has the right to be given
written reasons, without having to ask,
if she is dismissed at any time during
pregnancy or statutory maternity leave.
If a tribunal finds you have dismissed your
employee unfairly, the award against you
could be up to £55,000.
This is so hard to prove that you should
avoid making anyone in this situation
redundant, unless the reason is very clear.
For example, if you are closing a branch
and making everyone redundant, the
dismissal would clearly be unrelated to
the pregnancy.
A woman on maternity leave would have
the right to be offered any suitable job on
her return and, failing that, the right to a
redundancy payment.
B
◆
Contact Acas on 08457 47 47 47 or visit
the website at www.acas.org.uk.
◆
The Department for Work and Pensions
helpline is on 020 7712 2171 and the
website is at www.dwp.gov.uk.
Contact the Employers’ Helpline
(08457 143143).
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