Maternity Leave – The Facts
June 30, 2011 – 12:36 amPregnancy and the workplace – it’s not always the easiest relationship to manage as the rights of expecting and new mothers can conflict with employers’ business concerns.
However, employment law is pretty clear on this point. Pregnant employees or employees on maternity leave are protected against discrimination on the basis of their pregnancy or new motherhood.
With this in mind, the Employment Law Blog thought a breakdown of the facts of maternity leave might be useful for small or new businesses that may be trepidatious at dealing with this situation.
Maternity leave is a statutory right for employees
Employees are entitled to Statutory Maternity Leave (SML) if they fulfil two conditions: they must be an employee, and they must have given their employer the correct notice of their intention to take SML.
If an employee fulfils these conditions, her length of service does not matter. In addition, it doesn’t make a difference if she works part time or full time.
SML is made up of Ordinary Maternity Leave, which is 26 weeks, and Additional Maternity Leave, another 26 weeks. The total amount of SML is 52 weeks. If an employee is taking Additional Maternity Leave, it must follow on directly from Ordinary Maternity Leave with no gap in between.
The correct notice period
If your employee wants to take SML, she must give you the correct notice if she wants to qualify for it.
Your employee should notify you of her intention to take SML at least 15 weeks before the beginning of the week her baby is due. She should inform you of her pregnancy and the due date, and importantly, the date from which she wants her maternity leave to start.
You can request this notice in writing, and you can also request a copy of the MAT B1 certificate which is issued by your employee’s doctor and confirms the due date.
Maternity leave can be taken any time from eleven weeks before the beginning of the week in which the baby is due.
As an employer, you should respond to your employee’s request within 28 days. You should confirm you received her notice and the date her SML is to start and finish.
Compulsory maternity leave
Your female employees must take two weeks’ compulsory maternity leave after the birth of their baby.
Employee’s rights while on maternity leave
An employee is entitled to the same rights under her employment contract when she is on maternity leave as if she was still at work. She is entitled to be informed of anything that may affect her, such as the opportunity for promotion and to be consulted regarding redundancy, and the amount of contact between employer and employee should be reasonable.
However, an employee is not necessarily entitled to her normal salary during SML. As an employer, you can continue to pay this and include it as a term in the contract of employment if you wish.
Most employees will qualify for Statutory Maternity Pay or Maternity Allowance, which can be paid for up to 39 weeks. An employee’s eligibility will depend on how long they have worked for you and their earnings. If an employee is eligible for Statutory Maternity Pay or Maternity Allowance, an employer must pay it and then claim it back from the Government.
Returning to work
When you sent your employee the letter confirming the receipt of her notice, you should have included the date that you expect her to return to work (if she has not stated different, you should assume she will take the full 52 weeks of SML). If while on maternity leave, the employee decides to return to work earlier, she must give you eight weeks’ notice of the date she wishes to return.
If an employee only takes Ordinary Maternity Leave, she has a right to return to her old job.
If an employee takes Additional Maternity Leave as well, they should be offered their old job back, unless this is not reasonably practical. If it is not reasonably practical for you to offer them their old job back, the employee must be offered a job that is suitable and appropriate for them, on the same terms and conditions as their old job.
Contractual maternal leave
Of course, as an employer, you can give your employees a more generous maternity leave and pay package as part of their employment contract. You should ensure your employees know where to find the procedure they need to use to notify you of their intention to take maternity leave. You are not, however, entitled to offer them less than the statutory minimum.
Next week – the Employment Law Blog will look at the basics of paternity leave and outline the Government’s proposals to allow couples to split parental leave if they so choose.
