Female employees are entitled to a range of rights before and after giving birth. Close attention to the rules is needed since breach could generate a claim for sex discrimination.

Leave and Pay: Evidence
A woman must produce form MATB1 to her employer. This form is available from the 20th week before her EWC (Expected Week of Childbirth). A woman wishing to exercise her entitlements must notify her employer in or by the 15th week before her EWC, giving the employer a copy of the MATB1 if the employer requires this.

She must also state to her employer when she wishes her maternity leave (and her Maternity Pay - if she is eligible) to commence. She must give 28 days notice of the leave/pay start date. Within a further 28 days her employer must confirm to her, in writing, her rights to:

i. pay;

ii. preservation of contract; and

iii. return (see below).


If the baby is born before the expiry of the woman's 28 day notice period the leave (and pay if applicable) commences at the date of birth.

ALL women are entitled to 26 weeks ordinary leave, but ONLY women who have 26 weeks service as at the end of the 15th week before their EWC (i .e. a total of 40 weeks service before the EWC) are entitled to an additional 26 weeks (unpaid) leave, making a total of 52 weeks.

Provided a woman has 26 weeks service as at 15 weeks before her EWC and has earned at a rate of at least the Lower Earnings Level (LEL) for 8 weeks, she is entitled to Maternity Pay as follows:

  • for the first 6 weeks of her leave she is entitled to 90% of her earnings (averaged over the 8 week period before the 15th week before her EWC).

  • for the remainder of her ordinary leave she is entitled to £102.80 (April 2004) per week or 90% of her average earnings, whichever is less.

    The additional maternity leave of 26 weeks leave is unpaid.

    Both annual and maternity leaves are statutory rights. In the case of Merino Gomez the ECJ stated that a woman must be able to take holiday outside her maternity leave. If her contract requires her to be paid for bank holidays (and there is no legal right to payment for bank holidays; the employer must simply pay for 4 weeks holiday in its holiday year) and one or more bank holidays falls within the 6 week Ordinary Maternity Leave (OML) period it would appear that these holidays should be held over until later. In the remaining period of her OML she is entitled to her contractual holiday and during the whole of any Additional Maternity Leave (AML) she is entitled to her statutory holiday entitlement (and for any additional holiday if allowed by the contract). Either her holiday should be added to the end of her AML (see above ruling) or, since AML is unpaid, she might decide to take her outstanding (paid) holiday as part of this (unpaid) maternity leave.

    Recovery of Payments
    92% of the Statutory Maternity payments made to a women during her maternity leave are recoverable by 'large' employers by deduction from their NI contributions. (A 'large' employer is regarded as any employer whose total National Insurance liability for the previous tax year was £45,000 or more.) Other, 'small', employers can reclaim the whole amount plus a 4.5% 'admin' charge. If a small employer would find it difficult to fund the SMP they can apply for an advance.

    Return
    A woman must give 28 days notice of the date that she wishes her maternity leave to start. Her employer must (within 28 days of that notification) state the latest date by which she must return to work. She may change the leave 'start date', and, if so, within 28 days of the notification of the change the employer must advise a new 'return date'.

    The employer will always KNOW her required date of return since:

  • if the woman has insufficient service to qualify for additional leave her 'return date' is 26 weeks after she starts her leave.

  • if the woman has 40 weeks service before her EWC (i .e. 26 weeks by the end of the 15th week before the EWC) then she is entitled to an additional period of 26 weeks leave and thus her 'return date' is 52 weeks after she starts her leave.

    The employer can therefore state the 'return date' with certainty - although if the baby is born before the notified start, obviously this will bring the end of the ordinary leave and, if applicable, any additional leave, forward.

    An employer has no right to ask the employee if and when she wishes to return, but if she wishes to return BEFORE her 'return date' she must give her employer 28 days notice and her employer can postpone her return for any period - but not to a date later than her 'return date'. Otherwise the woman can simply arrive for work on her 'return date' - she does not have to give any notification, although in practical terms this would be advisable.

    Contract Terms
    Her contract continues during maternity leave and thus any rights other than pay (e.g. holiday) continue to accrue. Thus, a woman on maternity leave for 52 weeks could have a full year's holiday entitlement (plus or including Public Holidays if paid) which she should take (and be paid for) during that leave.

    Contract Terms
    Her contract continues during maternity leave and thus any rights other than pay (e.g. holiday) continue to accrue. Thus, a woman on maternity leave for 52 weeks could have a full year's holiday entitlement (plus or including Public Holidays if paid) which she should take (and be paid for) during that leave.

    Job on Return
    A woman entitled to the ordinary leave has a right to return to the job she was doing before her leave. But a woman entitled to the additional leave has a right to return to a similar job (on no less favourable terms) but not necessarily the job she left. Some women may wish to work parttime etc. on return. Women with children up to age 6 (18 if the child is disabled) are entitled to request their employer to consider a request to work flexibly - and to have such a request considered objectively.

    Failure to Return
    If a woman fails to return on the due date, this should be carefully investigated before any action is taken. If she is sick she should be treated in exactly the same way as any other sick employee (that is, asked for certification etc.). If she is not sick then the matter may need to be dealt with under the employer's disciplinary procedure.

    Working During Maternity Leave
    It is possible for a woman to claim maternity pay from one employer whilst continuing to work for another, but she cannot claim payment from any work for the same employer.

    Leaver
    If a woman leaves employment (irrespective of reason) after her qualifying week (15 weeks before her EWC) she is still entitled to be paid her statutory maternity pay.

    Second Baby
    If the woman becomes pregnant during her additional leave she will be entitled to a further 26 weeks ordinary leave but NOT any additional leave (because she had not returned to work after the first birth). If she has returned to work and works for at least 8 weeks for a wage/salary at or higher than the Lower Earnings Level and then finds she is pregnant the whole process is repeated.

    Coverage
    Provided an employee has the required service (and has earned at the required rate) she will be entitled to these rights irrespective of hours worked, casual status etc.

    Compulsory Leave
    Under the Maternity (Compulsory Leave) Regulations 1994 SI No 2479, an employee who is entitled to maternity leave must not work (or be permitted to work by her employer) for 2 weeks (4 weeks if she works in a factory) commencing with the date of childbirth. An employer who breaches this requirement (i.e. who allows the employee to work within 14 days of childbirth) can be fined up to a maximum of £500. This leave is entitled 'compulsory maternity leave'.

    Pension Membership

    Pension schemes are required to treat female members who are absent from work due to pregnancy or confinement and are in receipt of maternity pay, as if they were working normally and receiving the remuneration they would be likely to be paid for so doing. This needs to be taken into account when calculating continuity of membership, as well as rights and benefits to which they are entitled. In addition, members of either sex who are off work for family reasons must also be treated as if they were working normally, although in such cases the actual wages paid will be used as the relevant figure for calculating benefits.

    Antenatal Leave
    Under the Employment Act 1980 all pregnant employees have rights to reasonable time off with pay to attend ante-natal clinics on (if required) production to their employers of an appointment card. No card is required for the first appointment.

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