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Harriet Broughton

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Maternity leave: A practical guide

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Maternity leave is a topic constantly being discussed on HRzone.co.uk. This handy guide is a first-stop-shop for reference – but experienced members and experts are always ready to answer your questions in detail over at Any Answers.

This article deals with the statutory entitlement to maternity leave. Your business may have contractual or discretionary provisions which supplement the statutory basics. However, this article should provide a framework upon which you can overlay any supplementary provisions.

Statutory Maternity Leave: the entitlement

The only pre-condition for maternity leave is that the woman is an employee, therefore self-employed staff and contractors may not be entitled to the statutory minimum.

An expecting mother is entitled to:

–    26 weeks ordinary maternity leave (OML); and
–    26 weeks additional maternity leave (AML)

The employee must take a minimum of two weeks’ leave after the birth of the baby; this is called compulsory maternity leave.

Employee notification

The timing for a number of statutory maternity provisions is calculated with reference to the expected week of childbirth (EWC). The EWC starts on a Sunday and ends on a Saturday.

To qualify for maternity leave an employee should notify her employer not later than the end of the 15th week before the EWC of:

1.    The fact that she is pregnant;
2.    The expected date of the baby’s birth; and
3.    The intended start date of her maternity leave.

The expected date of childbirth is given by the GP or midwife on Form MATB1. The employer can request a copy of the MATB1 from the employee, and will need to copy for statutory maternity pay purposes.

The employee cannot start her statutory maternity leave earlier than the beginning of the 11th week before the EWC. If the birth occurs before this time, before the notified maternity leave start date, or before you have been notified, then statutory maternity leave must start on the day after the birth.

The employer may request the notification to be made in writing, and it is good practice to have a written record of any discussions to ensure that all parties are in agreement.

After she has notified you, the employee can change the start of her maternity leave. She must do this either 28 days before the original date, or 28 days before the new date, whichever is earlier.

It is good practice to encourage employees to notify their employer earlier than the statutory requirements, as this means that you can arrange paid time off for antenatal care, you can carry out any appropriate health and safety assessments, and you can start arrangements for covering her maternity leave absence.

If the employee fails to give you the required notification she loses her right to start maternity leave on her chosen date. You must make an exception to this if it was not reasonably practicable for the employee to give you notice any earlier, for example if she does not realise she is pregnant or the baby is premature.

Response to notification

Once the employee has notified you of her pregnancy and maternity leave intentions, you must write to her within 28 days notifying her when the maternity leave will end. The starting assumption is that the employee will take her full 52 week maternity leave entitlement.

It is good practice to have a discussion with your employee during her pregnancy about her plans for maternity leave as this will help you cover her absence. However, it is often the case that the employee does not know how much time she will take off, or will change her mind once the baby is born.

The employee can change her mind about her return to work date. However, she must give you at least eight weeks notice if she intends to return to work earlier or later. If the employee doesn’t give the proper notice you can delay the return by up to eight weeks, but not later than the end of her 52 week maternity leave period.

During maternity leave – benefits, holiday and pension

The employee is entitled to all normal benefits during her maternity leave, apart from wages and salary. For example, she will be entitled to normal benefits such as gym membership, participation in share schemes, and use of a company car or mobile phone (unless these are provided solely for business use).

She will also accrue statutory and contractual annual leave during her maternity leave, although she may not take annual leave during her maternity leave. Instead, annual leave should be taken before or after statutory maternity leave. If she takes annual leave before her maternity leave and the baby is born during this time, then her statutory maternity leave begins the day after the baby is born.

The employee is also entitled to pension contributions during her maternity leave. Employer contributions are calculated with reference to her normal pay; employee contributions are calculated on the basis of her maternity pay.

During maternity leave – contact

It is good practice to keep in contact with the employee during her maternity leave. You must keep her informed of promotion opportunities and other information relating to her job, such as redundancy situations.

An employee can also have up to 10 ‘keeping in touch’ days (KIT days). She can undertake her normal day-to-day work or could, for example, attend a conference, undertake training or attend team meetings. She is entitled to be paid for each KIT day, at a rate agreed between the parties, and she must also receive her statutory maternity pay.

After maternity leave: returning to work

After the OML an employee is entitled to return to the same job on the same terms and conditions. After the AML, the same is true unless it is not reasonably practicable for her return to the old job (for example because of a restructure). If this applies then she must be offered a job that is suitable and appropriate for her to do and on no less favourable terms and conditions.

If the employee does not wish to return to work after her maternity leave then she should give you notice in the normal way.
 


Harriet Broughton is an
employment solicitor at Bevans www.bevans.co.uk


This information is believed to be correct as at October 2010. It is not a substitute for legal advice and no liability attaches to its use. Specific and personal legal advice should be taken on any individual matter.

3 Responses

  1. a helpful guide; and a note on KIT days

    Thank you – always helpful to have a straightforward guide; and often challenging to simplify this area too.

    Wanted to add the NB that KIT days are voluntary on the part of both employee and employer. That is, the individual cannot insist on working KIT days but neither can she be required to work them.

    — Jennifer Liston-Smith Head of Coaching Development My Family Care http://www.myfamilycare.co.uk

  2. Just a few bits of additional information

    Hi

    I’d just add a few points of clarification…

    • compulsory maternity leave is 4 weeks if the employee works in a factory
    • the employer must hold the original MATB1 for SMP purposes not a copy unless a second employer has the original then the copy must be annotated to this effect
    • Pension contributions by the employer are only required to the end of paid leave which may only be 39 weeks if SMP only is payable not the full 52
    • Payment for KIT days does not mean that the employee has to be paid her normal pay plus SMP, SMP can be offset against normal pay for that day. From a fairness perspective most employers negotiate a lower rate of contractual pay for KIT days that when added to the SMP payabe for that day (if within the SMP period) will equate to the normal pay for that day. To pay SMP on top of normal pay would seem unfair to employees who are not on leave and to pay SMP only will in all likelihood mean that pay falls below National Minimum Wage 

    Kate Upcraft

    payroll technical writer and lecturer

    http://www.kateupcraft.com

      

     

  3. Benefits during maternity leave

     Ms Broughton writes “The employee is entitled to all normal benefits during her maternity leave, apart from wages and salary. For example, she will be entitled to normal benefits such as gym membership, participation in share schemes, and use of a company car or mobile phone (unless these are provided solely for business use).”

     Another of the “normal benefits”, although most employers think of them as pay, are childcare vouchers. This anomaly, at a cost to the employer at the rate of up to £2,916pa during maternity leave, has been a disincentive to the introduction of childcare voucher schemes. Yet the employer can protect itself if it takes the trouble to require an indemnity as a condition applicable to anyone, irrespective of sex, joining its scheme: see http://www.abacusvouchers.co.uk.

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