Maternity Rights—Medical Reports, Access To
Maternity Rights
(The rights of employees before and after childbirth)
Key points
- Legislation governing the rights of employees before and after childbirth is currently to be found in Part VIII of the Employment Rights Act 1996, as substituted by section 7 and Schedule 4 (Part 1) of the Employment Relations Act 1999 and 'fleshed out' by the Maternity & Parental Leave etc Regulations 1999, which latter were amended (on 24 November 2002) by the Maternity & Parental Leave (Amendment) Regulations 2002. The law regulating an employee's entitlement or otherwise to statutory maternity pay (SMP) or the state maternity allowance (MA) is to be found in Parts II and XII of the Social Security Contributions & Benefits Act 1992 (referred to in this section as 'the 1992 Act'), and in Regulations made under (or saved by) that Act. The 1992 and 1996 Acts apply to persons employed in England, Scotland and Wales. Cognate legislation covers persons employed in Northern Ireland.
The old and the new
- This section is concerned solely with the right of a pregnant employee, whose expected week of childbirth (EWC) begins on or after 6 April 2003, to take up to 52 weeks' maternity leave and her (new) right to be paid up to 26 weeks' Statutory Maternity Pay (SMP) during her ordinary maternity leave period. In the interests of space, the rights of employees whose EWCs occur (or occurred) before 6 April 2003 are not discussed in this section. Suffice to say that a pregnant employee whose EWC begins before 6 April 2003 is restricted to the former maximum of 18 weeks' ordinary maternity leave, supplemented (if she qualifies) by up to 29 weeks' additional maternity leave starting with the Sunday of the week in which childbirth occurred. In her case, the former rules prevail, even if she gives (or gave) birth on or after 6 April 2003.
Ordinary and additional maternity leave periods
- Subject to certain procedural requirements (discussed later in this section), every pregnant employee whose expected week of confinement (or childbirth) (EWC) begins on or after 6 April 2003 has the legal right to a minimum 26 weeks' ordinary maternity leave, regardless of her working hours or length of service. If she has been continuously employed for 26 or more weeks by the end of the 15th week before her EWC, she is entitled also to take up to 26 weeks' additional maternity leave. The additional maternity leave period begins on the day immediately following the day on which the employee's ordinary maternity leave period ends.
Statutory maternity pay (SMP)
- A pregnant employee who has worked for her employer for 26 weeks or more by the end of the 15th week before her EWC and who has average weekly earnings equal to or greater than the current 'lower earnings limit' for National Insurance purposes (ie, £77), is entitled to be paid up to 26 weeks' statutory maternity pay (SMP) during her maternity pay period. The 'maternity pay period' is the period of up to 26 weeks that begins on the day immediately following the day on which an employee began her ordinary maternity leave, and ends with the payment week immediately preceding the date on which she returned to work. An employee who does not qualify for SMP, may be entitled to receive the state maternity allowance (MA) or a payment from the Social Fund. SMP is discussed in more detail later in this section.
- An employer who has lawfully paid SMP to an employee can recover 92 per cent of the gross amount paid by deducting that amount from the total amount of employees' and employers' National Insurance contributions payable (together with income tax) to the Collector of Taxes within 14 days of the end of each income tax month. An employer who qualifies for Small Employer's Relief can recover 100 per cent of the gross amount of SMP payments made, plus an additional 4.5 per cent as compensation for National Insurance contributions paid on SMP (vide the Statutory Maternity Pay (Compensation of Employers) Amendment Regulations 2002). See below for further details.
Return to work after childbirth
- A woman returning to work after her ordinary maternity leave period is entitled to do so in the job in which she was employed before her absence began. A woman who takes additional maternity leave is also entitled to return to work in the job in which she was employed before her absence, or, if it is not reasonably practicable for her employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances. But see Parental leave.
Note An employee entitled to additional maternity leave is no longer obliged to inform her employer in advance that she intends to exercise her right to return to work on completion of that period of leave; nor does her employer have any right to insist that she does so. Nor may her employer write to her (as was previously the case) before the end of her ordinary maternity leave, asking her to confirm whether or not she intends to return to work at the end of the additional maternity leave period.
Meaning of 'childbirth'
- Section 235(1) of the 1996 Act defines childbirth as meaning the birth of a living child or the birth of a child whether living or dead after 24 weeks of pregnancy. The expected week of childbirth is the week, beginning at midnight between Saturday and Sunday and ending at midnight on the following Saturday, in which it is expected that childbirth will occur. The word confinement no longer appears in the 1996 Act. However, it is still used in the social security legislation (and means exactly the same as childbirth).
- An employee who has a contractual as well as a statutory right to maternity leave may take advantage of whichever of those rights is the more favourable to her (not both). The same applies if she has a contractual right to be paid the whole or part of her normal wages or salary during her ordinary maternity leave period. In that event, her employer may offset SMP (if any) paid to that employee against the amount paid under her contract (and vice versa), but only in respect of weeks in which both the contractual and statutory amounts are due. For example, an employee may be entitled under her contract to 32 weeks' paid maternity leave, but her employer cannot insist that she delay her return to work until the end of that contractual entitlement, as that would deny her her legal right to return to work (on full pay) at the end of her 26-week ordinary maternity leave period.
- If there has been a change of employer (for example, in circumstances in which there is no break in the mother-to-be or new mother's period of continuous employment), the new employer (who may be an associate or successor employer) inherits her former employer's contractual and statutory obligations in relation to that employee including her right to maternity leave and pay, and her right to return to work after childbirth. If her former employer had started paying her SMP before the change in ownership, her new employer must continue paying SMP until her maternity pay period ends.
Ordinary maternity leave
- Every pregnant employee expecting a baby on or after 6 April 2003 is entitled to take up to 26 weeks' ordinary maternity leave, whether she is in full-time or part-time employment and regardless of her length of service at the material time. If she is healthily pregnant, she has the right also to decide when her maternity leave period is to begin (subject to the proviso that, unless she gives birth prematurely, she may not begin her maternity leave before the beginning of the 11th week before her EWC. Furthermore, her maternity leave period begins immediately if she is absent from work with a pregnancy-related illness at any time during the four weeks immediately preceding her EWC (see Pregnancy-related illnesses below).
- Once she has made up her mind, a pregnant employee must inform her employer by the end of the 15th week before her EWC of the date on which she intends her maternity leave period to begin (in writing, if her employer insists). At the same time, she must specify her EWC and (if asked to do so) produce for her employer's inspection a certificate of expected confinement (Form MatB1 or the equivalent) signed by her doctor or registered midwife. If for one reason or another, the employee is unable to give the required advance notice by the end of that 15th week, she must do so as soon as is reasonably practicable. If she later changes her mind about the date on which she intends to start her maternity leave, she must give her employer at least 28 days' advance notice of the revised start date. The employee's maternity leave period begins on the notified date, unless she gives birth or is taken ill with a pregnancy-related illness before that notified date, as to which see Premature birth and Pregnancy-related illnesses below.
Note Form Mat B1 (Maternity Certificate) is the standard form of certificate issued by doctors and midwives, although any form of certificate signed by a doctor or registered midwife, and couched in similar terms, will satisfy the legal requirement. A doctor or midwife will not normally issue Form Mat B1 until the beginning of the 14th week before the expected week of childbirth. Form Mat B1 is in two parts. Part A nominates the week in which childbirth is expected to occur; while Part B (Mat B2) certifies the date on which childbirth actually occurred. - An employee, who neglects (or wilfully refuses) to give the prescribed advance notice of the date on which she intends to start her maternity leave, runs the risk of forfeiting her right to maternity leave and, very possibly, her right (if any) to SMP.
- An employer who has been correctly informed of an employee's pregnancy and EWC, and of the date on which she intends to start her maternity leave, must respond in writing within the next 28 days. In doing so, he must inform her of the date on which her full entitlement to maternity leave ends. By 'full entitlement' is meant her entitlement to ordinary maternity leave or, where appropriate, her entitlement to both ordinary and additional maternity leave). If he fails to reply in those terms within that 28-day period, he may not prevent her returning to work sooner than the due date and may not legitimately dismiss or discipline her for returning to work later than expected. The reader should note also that, with the coming into force on 6 April 2003 of the Maternity & Parental Leave (Amendment) Regulations 2002, an employer may no longer write to an employee towards the end of her ordinary maternity leave period asking her to confirm whether or not she intends to return to work at the end of her additional maternity leave period.
- If an employee gives birth prematurely (that is to say before her EWC and before the date on which she intended to begin her maternity leave, whether or not she had already notified her employer of that intended start date), her ordinary maternity leave period begins with the day on which childbirth occurs. But she risks forfeiting her entitlement to ordinary maternity leave (and, where appropriate, SMP) unless she informs her employer as soon as is reasonably practicable that she gave birth on such-and-such a date.
- If she has not done so already, she must also inform her employer of her EWC (supported by a Form Mat B1, if her employer asks her to produce that document or its equivalent), bearing in mind that it is her EWC, not the actual date of birth, which determines her entitlement, if any, to SMP and additional maternity leave. It is useful to note that one side of Form Mat B1 is a 'Certificate of Expected Confinement'; the other, a 'Certificate of Confinement'. If an employee gives birth prematurely, she should ask her doctor or midwife to sign both sides of the form before sending it off to her employer.
Note An employee whose baby is stillborn within the first 24 weeks of pregnancy has no legal right to maternity leave (but will usually qualify for statutory sick pay (SSP) and, very likely, occupational sick pay, for so long as it takes for her to recover and return to work). But, if the stillbirth occurs after 24 weeks of pregnancy, she retains her right to ordinary maternity leave and, if she qualifies, to additional maternity leave also.
- If a pregnant employee falls ill (or is still ill) with a pregnancy related illness at any time on or after the beginning of the fourth week before her EWC, her ordinary maternity leave period must begin immediately (regardless of the date on which she had otherwise intended to start her leave). If she has been receiving SSP in respect of her illness, those payments must cease, to be replaced (if she qualifies) by SMP. No further payments of SSP are permissible during the maternity leave period, even if the employee does not qualify for SMP during that period. In these circumstances also, she must notify her employer as soon as is reasonably practicable that she is absent from work wholly or partly because of pregnancy.
Note A pregnant employee who is on sick leave (because of an illness or injury that has nothing to do with her being pregnant) may continue to draw statutory sick pay or invalidity benefit until her notified leave date (ie, the date on which she intended her maternity leave period to begin) or until her baby is born, whichever occurs sooner.
- An employee who takes ordinary maternity leave is entitled, during that period of leave, to the benefit of all the terms and conditions of employment that would have applied but for her absence (other than her right to be paid her normal wages or salary), and is bound, during that period, by any obligations arising under those terms and conditions.
- If, for example, an employee's entitlement to paid annual holidays or occupational sick pay (or, indeed, a pay rise) is determined by reference to her length of service, her absence on maternity leave counts as part of her total period of continuous employment. If her employer pays pension contributions while she is at work, he must continue to pay those contributions at the same level while she is absent on ordinary maternity leave (that is to say, based on her normal wages or salary). However, unless she volunteers otherwise, her own pension contributions must be based only on the amount of any contractual remuneration or SMP actually paid to her during her maternity leave (persection 23 and Schedule 5 to the Social Security Act 1989). The point is that, save for the suspension of her right to be paid her normal wages or salary, an absentee employee's remaining terms and conditions of employment (as well as her statutory right to four weeks' paid annual holidays) prevail throughout her ordinary and additional maternity leave periods.
Return to work after ordinary maternity leave
- An employee returning to work after her ordinary maternity leave has the right to do so in the job she occupied before that period of leave began (that is to say, in her original job) – unless, as is explained below, she takes four or more weeks' parental leave before returning to work. If she intends to return to work on the day following the day on which her ordinary maternity leave period comes to an end, she need do no more than turn up for work on the day in question. However, different rules apply if she wishes to return to work sooner than expected (see An early return to work? below). While it would be sensible for an employee approaching the end of her ordinary maternity leave period to keep in touch with her supervisor or head of department, to ensure that everything is in readiness for her return to work, this is by no means a legal requirement. A woman who does not intend to return to work after her ordinary (or additional) maternity leave period must give her employer the notice of termination required by her contract of employment.
- A woman who takes up to four weeks' parental leave immediately after the end of her ordinary maternity leave period retains her right to return to work in her original job on the same terms and conditions as if she had not been absent. But, if she takes more than four weeks' parental leave at that time, she may have to forego that right and accept an offer of suitable alternative employment if it is not reasonably practicable for her employer to permit her to return to her original job. It is as well to point out that a woman who wishes to take a period of parental leave immediately after her ordinary (or additional) maternity leave period must apply to take that leave at least 21 days before the end of her maternity leave period. A woman does not qualify to take a period of parental leave, of whatever duration, at the end of her ordinary maternity leave (or at any other time) unless she has completed one or more years' continuous service by the time the requested period of parental leave is set to begin
- A woman's ordinary maternity leave period will usually end after 26 weeks (unless she has a contractual right to a longer period of leave), but must continue for so long as may be necessary to accommodate the 'compulsory maternity leave period' referred to in the next paragraph. If she is prevented by illness from returning to work at the end of her ordinary maternity leave, she must comply with such procedures for notifying sickness absence as are laid down in her contract of employment or in any associated document. An employer does not have the right to postpone an employee's return to work after the end of her ordinary (or, indeed, her additional) maternity leave period (ibid. regulation 11).
- But if an employee plans to return to work early – bearing in mind that she may not lawfully do so within the compulsory maternity leave period, that is to say, within two weeks of giving birth (or within four weeks of that date if she works in a factory (per section 205, Public Health Act 1936) – she must give her employer at least 28 days' notice of her intentions, although there is no need for her to do so in writing. If she returns to work unannounced and earlier than the due date, or after having given less than 28 days' notice, her employer has every right to send her home and to insist that she delay her return to work until those 28 days have elapsed or until the end of her ordinary maternity leave period, whichever occurs sooner. An employer has no right to delay an employee's return to work beyond the end of her ordinary maternity leave period. An employee who is denied her right to return to work after that period will be treated in law as having been unfairly dismissed and may pursue the matter before an employment tribunal.
- Section 99 of the 1996 Act (supported by Regulation 20 of the Maternity & Parental Leave etc Regulations 1999 (qv)) cautions employers that it is unlawful and automatically unfair to dismiss an employee (or select her for redundancy) during her ordinary (or additional) maternity leave period if the reason (or, if more than one, the principal reason) for her dismissal or selection is that she is (or was) pregnant or had given birth to a child, or because she had exercised her statutory rights in relation to pregnancy and childbirth.
- If an employee is made genuinely redundant during her ordinary maternity leave, her employer is nonetheless duty-bound to offer her suitable alternative employment before her employment under her old contract comes to an end. The alternative employment must begin on the day following the day on which her previous employment ended and, to be 'suitable', must involve work that is both suitable and appropriate for her to do in the circumstances (given her qualifications, experience and skills) and on terms and conditions of employment not substantially less favourable to her than those that would have applied had she continued to be employed in her original job. In short, she should enjoy the same or equivalent status or seniority under the new contract, work in the same location (if not in the same department or section), receive the same or a comparable rate of pay, and be entitled to the same annual holidays, the same sickness benefits; and so on (ibid. regulation 10).
- If an employee is made redundant during her ordinary maternity leave period without being offered suitable alternative employment, or without being consulted about the suitability of any available vacancies, her dismissal will be held to have been unfair. If she believes that she has been unfairly treated, she has the right to pursue her case before an employment tribunal. If the tribunal finds in her favour or believes that she was selected for redundancy principally because she was pregnant or because she had given birth to a child (or for a connected reason), it will order her employer to pay a substantial award of compensation – the more so if she elects to pursue her complaint under the Sex Discrimination Act 1975.
- If the employer 's defence is that there was no suitable alternative employment to offer the employee, or that she had unreasonably refused an offer of what would ordinarily be considered to be suitable alternative employment, or that there was nothing untoward about the employer's motives in selecting her for redundancy, the case will be decided on its merits.
- An employer should be extremely cautious about dismissing an employee (for a reason other than redundancy) during her ordinary (or additional) maternity leave period – bearing in mind that her contract of employment subsists during her absence and that she is accordingly entitled to the same consideration as any person who is absent from work on holidays or sick leave. To dismiss an employee in absentia will usually be held unfair – the more so if the evidence shows that she was not told about the reasons for her dismissal, had not been forewarned of the likelihood of her being dismissed, and not been afforded an opportunity either to put her side of the case or to appeal against her employer's decision to dismiss her – issues of procedural fairness reemphasised by the House of Lords in Polkey v Dayton Services Limited [1987] IRLR 503.
Note Unless dismissed for an unlawful or inadmissible reason (or for a reason connected with her having been pregnant or given birth to a child), an employee dismissed during her maternity leave period for a reason other than redundancy (eg, misconduct) will not normally qualify to bring a complaint of unfair dismissal unless employed by her employer for a continuous period of at least one year ending with the effective date of termination of her contract of employment. However, there is nothing to prevent her pursuing her complaint (regardless of her length of service) if she is convinced that the real reason for her dismissal was an unlawful or inadmissible reason;
Additional maternity leave
- In addition to her right to a minimum of 26 weeks' ordinary maternity leave, a woman who has been continuously employed for 26 weeks or more by the end of the 15th week before her EWC, is entitled to 26 weeks' additional maternity leave beginning on the day immediately following the day on which her ordinary maternity leave period ends. Furthermore, she has the right to return to work at the end of (or, subject to certain conditions, during) that additional maternity leave period.
- An employee who has the right to take additional maternity leave has no need to inform her employer in advance that she intends to take advantage of that right; nor need she inform her employer (as was the case under the previous regime) that she intends to exercise her right to return to work after her additional maternity leave period ends. As was explained earlier, the only advance notice she need give her employer (before the end of the 15th week before her EWC) is notice confirming that she is pregnant (with supporting documentation) and specifying the date on which she intends to start her maternity leave. Her additional maternity leave period commences automatically on the day immediately following the day on which her ordinary maternity leave period ends.
Contractual rights during additional maternity leave
- The Maternity & Parental Leave etc Regulations 1999 (as amended) make it clear that an employee's contract of employment continues during her additional maternity leave period although not necessarily to the same extent as her contractual rights during her ordinary maternity leave period.
- Regulation 17 of the 1999 Regulations states that, during her additional maternity leave, an employee is entitled to the benefit of her employer's implied obligation to her of trust and confidence and to any terms and conditions relating to:
- notice to terminate her employment;
- compensation in the event of redundancy; or
- disciplinary and grievance procedures.
In short, if she is dismissed during her additional maternity leave, she must be paid her normal wages or salary during the notice period (or money in lieu of notice), as well as any accrued entitlement to holiday pay. If she is made redundant, she must also be paid any entitlement to statutory redundancy pay, plus any 'top up' payment by way of severance pay (to which she would otherwise be entitled but for her absence). If she is to be dismissed, or has a grievance against her employer, she is entitled to be treated in the same way as any other employee facing dismissal or intent upon pursuing any such grievance. - For her part, an employee intent on resigning during her additional maternity leave, must give her employer the prescribed notice to terminate her contract of employment; must not disclose to an unauthorised third party any confidential information concerning her employer's business affairs (trade secrets, pricing policy, marketing strategy, etc); must not accept any gifts or benefits in breach of her implied contractual duty of trust and confidence; and must not participate in any other business in competition with her employer.
Dismissal during additional maternity leave
- Section 99 of the 1996 Act (supported by Regulation 20 of the now amended Maternity & Parental Leave etc Regulations 1999 (qv)) cautions employers that it is unlawful and automatically unfair to dismiss an employee (or select her for redundancy) during her additional (or ordinary) maternity leave period if the reason (or, if more than one, the principal reason) for her dismissal or selection is that she had given birth to a child, or because she had exercised any of her statutory rights in relation to pregnancy and childbirth (including her right to ordinary or additional maternity leave).
- If an employee is dismissed during her additional period maternity leave (for a reason other than redundancy), it will be for an employment tribunal to decide whether her dismissal was fair bearing in mind that the tribunal is likely to question her employer's motives in dismissing her in absentia and his (or her) failure to follow the correct procedure when doing so. If the tribunal finds that the employee was dismissed for an unlawful or inadmissible reason, it will make a declaration to that effect and will order the employer either to reinstate or re- engage the employee in her old job or pay her an additional award of compensation (over and above the amount of the basic and compensatory awards of compensation for unfair dismissal)
Redundancy during additional maternity leave
- An employee made redundant during her additional maternity leave period is entitled to the same consideration as an employee made redundant during her ordinary maternity leave period. In short, she is entitled to be offered suitable alternative employment beginning on the day immediately following the day on which her previous employment ended, and on terms and conditions of employment not substantially less favourable to her than those that would have applied had she continued to be employed in her original job
- When an employee returns to work after her additional maternity leave period, she is entitled to do so in the job in which she was employed before her ordinary maternity leave period began – unless it is not reasonably practicable for her employer to permit her to return to work in that job, in which case she is entitled to return to work in another job which is both suitable for her and appropriate for her to do in the circumstances. Whether she returns to work in her original job or in a 'suitable and appropriate' alternative job, she must be permitted to do so:
- on a salary or wage (or rate of pay) not less favourable to her than the remuneration that would have been applicable to her had she not been absent from work at any time since the commencement of her ordinary maternity leave period;
- with her seniority, pension rights and similar rights as they would have been if the period (or periods) of her employment prior to her additional maternity leave period were continuous with her employment following her return to work; and
- otherwise on terms and conditions no less favourable than those that would have applied to her had she not been absent from work after the end of her ordinary maternity leave period (ibid. regulation 18).
- An employee who takes a period of parental leave of four weeks or less, immediately after the end of her additional maternity leave, retains her right to return to work in her original job unless it would not have been reasonably practicable for her to have returned to that job at the end of her additional maternity leave period and it is still not reasonably practicable for her to do so. If she takes more than four weeks' parental leave immediately after the end of her additional maternity leave, she is entitled to return to her original job or, if that is not reasonably practicable, to a similar job on terms and conditions no less favourable to her than those to which she was entitled in her original job.
- An employee who intends to return to work at the end of her additional maternity leave period need do no more than turn up for work on the due date. However, if she intends to return to work early, that is to say, before the end of that period, she must notify her employer at least 28 days beforehand that she intends to return to work on that earlier date. If an employee's return to work is delayed because of illness or injury, she need do no more than inform her employer of that fact (in accordance with her employer's rules in relation to sickness absence) and provide the necessary evidence of incapacity.
Note Employers should note that they no longer have the statutory right to delay an employee's return to work after childbirth (for whatever reason); nor do would-be- returning employees forfeit their right to return to work if illness or injury intervenes to prevent them doing so within four weeks of the notified date. Those provisions of the Employment Rights Act 1996 have long since been repealed. - If an employee returns to work early and unannounced, without having given the prescribed 28 days' advance notice, her employer has every right to send her home and to insist that she delay her return until those 28 days have elapsed or until the end of her ordinary maternity leave period, whichever occurs sooner. She has no right to be paid if she ignores her employer's instructions and remains at work during the notice period.
Failure to permit a return to work treated as a dismissal
- An employee who is denied her statutory right to return to work after either of her ordinary or additional maternity leave periods will be treated in law as having been unfairly dismissed if her dismissal is solely or mainly attributable to the fact that she exercised her right to maternity leave or took advantage of the benefits of her terms and conditions of employment to which she was entitled during that leave. In short, her employer will need to satisfy an employment tribunal that he (or she) had a legitimate reason for dismissing the employee (unconnected with her having taken advantage of statutory maternity rights) and had acted fairly and reasonably in doing so.
- If an employer can satisfy an employment tribunal that the employee's original job was no longer available because of redundancy and that he (or she) had acted fairly and lawfully in selecting her for redundancy – there being no suitable available vacancy to offer her, or that she had been offered suitable alternative employment by an associated employer which she had either accepted or unreasonably refused – her dismissal will be held to have been fair (ibid. section 81).
Note If the evidence before an employment tribunal shows that the employee was selected for redundancy for an inadmissible reason (eg, because of her sex or for reasons connected with her having taken advantage of her statutory rights in connection with pregnancy or childbirth, including her right to maternity leave), her dismissal will be held to have been inadmissible and unfair (ibid. regulation 20(2)). - Finally, an employee who has been denied her right to return to work after additional maternity leave will not be held to have been unfairly dismissed:
- if, immediately before the end of her additional maternity leave period (or immediately before her dismissal, if her additional maternity leave ended with her dismissal) the number of persons employed by her employer (including the employee herself, added to the number employed by any associated employer, did not exceed five; and
- her employer (who may be the same employer or a successor) can satisfy the tribunal that it was not reasonably practicable either to permit her to return to work in her original job or to offer her suitable alternative employment or for an associated employer to offer her a job of that kind (ibid. section 96(2)).
As was indicated earlier, the alternative employment (or job) offered to an employee who has been denied her right to return to work in her original job, must involve work that is both suitable and appropriate for her to do (given her qualifications, experience and skills) and must be on terms and conditions of employment not substantially less favourable to her than those that would have applied had she been permitted to return to work in her original job. In short, she should enjoy the same or equivalent status or seniority, be employed in the same place (if not in the same department or section), receive the same or a comparable rate of pay, and be entitled to the same annual holidays, the same sickness benefits; and so on.
- An employee who is dismissed (for whatever reason), either while pregnant or after having given birth (in circumstances in which her ordinary or additional maternity leave period ends by reason of the dismissal) must be provided by her employer with a written statement explaining the reasons for her dismissal – regardless of her working hours or length of service at the relevant time and regardless of whether she has asked to be issued with such a statement. Furthermore, the statement must be given or sent to the employee within 14 days of the date on which her dismissal took place (ibid. section 92(4)).
- On a complaint to an employment tribunal, an employer who has refused or failed to provide the written statement, or has failed to do so within the prescribed 14 days, or provides a statement containing information that is inadequate or untrue, will be ordered by the tribunal to pay the employee a sum equivalent to two weeks' pay. Where appropriate, the tribunal will also make a declaration as to what it finds the employer's real reasons were for dismissing the employee – bearing in mind that a complaint arising out of an employer's failure to provide a written statement will very likely be heard at the same time as a complaint of unfair or unlawful dismissal (ibid. section 93).The written statement of reasons for dismissal referred to in the previous paragraph is admissible in evidence in proceedings before a tribunal or court (ibid. section 92(5)).
Statutory maternity pay (SMP)
Summary
- A pregnant employee who has been employed by her employer for a continuous period of at least 26 weeks by the end of the 15th week before her EWC, and has average weekly earnings of £77 or more per week – the current (2003/04) 'lower earnings limit' for NI contributions purposes – is entitled to be paid SMP for a period of up to 26 weeks during her ordinary maternity leave period. SMP is payable in weekly amounts only (a week, for these purposes, being a period of seven consecutive days, eg, Wednesday/Tuesday). Unlike statutory sick pay (SSP), there is no equivalent daily rate of SMP.
- An employee's maternity pay period cannot begin before the Sunday of the 11th week before her EWC, unless she gives birth before the beginning of that 11th week, in which event it will start on the day after the day on which childbirth occurs. If a pregnant employee is absent from work wholly or partly because of a pregnancy or confinement, on or after the beginning of the fourth week before her EWC (but not later than the week immediately following the week in which childbirth occurs) the first week of her maternity pay period is the period of seven consecutive days that begins on the day immediately following the day on which she is so absent.
- The period during which SMP is payable is referred to as the 'maternity pay period'. An employee's right to be paid SMP persists if she leaves her employment at any time after the beginning of the 11th week before her EWC and before the start of her maternity pay period, but not later than the week immediately following the week in which she gives birth. In that situation, the first week of her maternity pay period is the week after the week in which her employment ends. In this situation only, a 'week' is the period of seven consecutive days that begins on a Sunday and ends on the following Saturday.
- An employee with eight or more weeks' continuous service, who is dismissed by her employer solely or mainly for the purpose of avoiding liability for SMP, will retain her right to SMP if, but for her dismissal, she would have completed 26 weeks' service by the end of the 15th week before her EWC (per regulation 3, Statutory Maternity Pay (General) Regulations 1986 (discussed later in this section)).
SMP rights on resignation or dismissal
- The maternity pay period for an employee entitled to SMP, who resigns or is dismissed (for whatever reason) after the beginning of the 15th week before her EWC, but before the beginning of the 11th week before her EWC, begins on the Sunday of that 11th week, not on the day immediately following the day previously notified as the day on which she intended her maternity leave period to begin.
- The maternity pay period for an employee entitled to SMP, who resigns or is dismissed, on or after the beginning of the 11th week before her EWC but before the day previously notified as the day on which she intended to begin her maternity leave (the notified date), begins on the day immediately following the day on which her employment came to an end.
- A woman who resigns or is dismissed on or after the beginning of her maternity pay period must continue to be paid SMP by her (former) employer until the payment period ends. However, if she starts work for another employer during what remains of her maternity pay period, she must notify her former employer of that fact – in which event, her maternity pay period ends with the last weekly payment before the date on which she started work with that other employer.
SMP rates
- There are two rates of SMP: the higher rate and the lower rate. The higher rate, which is equal to nine-tenths of an employee's average weekly earnings (see below), is paid for the first six weeks of the maternity pay period. The lower rate is payable for the remainder of that period, but not for more than 20 weeks. From 6 April 2003, the lower rate of SMP is £100 a week or 90 per cent of the employer's average weekly earnings, whichever is the lesser of those amounts.
- As is the case with payments under the employers' statutory sick pay (ESSP) scheme, all payments of SMP are subject to the deduction of income tax (PAYE) and National Insurance Contributions (NIC). Attachment of earnings orders do not apply to payments of SMP, but other amounts normally deducted from an employee's pay, such as pension contributions, are permitted.
- SMP should be paid on a normal payday, using the method of payment normally used for paying wages and salaries. SMP must not be paid in kind. Nor may it be paid in the form of board or lodgings or by way of a service. If an employee normally collects her wages in cash (eg, from the wages office), she should talk to her employer about a more convenient way of receiving her SMP, or arrange to have a relative or friend collect the money on her behalf.
Qualifying conditions for SMP
- To qualify for SMP, an employee:
- must have been employed (or be deemed to have been employed) by her employer for at least 26 weeks up to and into the 15th week before her EWC;
- must have 'average weekly earnings' equal to or higher than the current earnings threshold for SMP purposes (ie, £77 a week) – which average weekly earnings are to be calculated over the eight- week period ending with her last payday before the end of that 15th week;
- must either still be pregnant at the beginning of the 11th week before her EWC or have already given birth.
Note If an employee's baby is stillborn before the beginning of the 16th week before the EWC, the mother will not be entitled to SMP (but should qualify for either or both of statutory or occupational sick pay). But, if her baby is born (alive or dead) after the beginning of that 16th week, she will still qualify for SMP if she has average earnings equal to or higher than the then current 'lower earnings limit' for National Insurance contributions and would have satisfied the 26-week rule but for the premature birth.
- To exercise her right to be paid SMP during her absence on maternity leave, an employee must serve notice on her employer (in writing, if he insists) of the date from which she expects his liability to pay her SMP to begin, so long as she does so at least 28 days before that date or, if that is not reasonably practicable, as soon as is reasonably practicable.
The 26-week rule
- The first and, perhaps, most important condition for entitlement to SMP is the so-called '26 week rule', which states that a pregnant employee will not qualify for SMP unless she has been (or is deemed to have been) employed for a period of at least 26 consecutive weeks up to and into the 15th week before the expected week of her confinement (the 'qualifying week').
Note If there has been a change of employer or if an employer's business or undertaking is sold as a going concern, the new owner (employer) inherits the contracts of employment of the persons employed in that business or undertaking at the time of the transfer or sale (vide regulation 5, Transfer of Undertakings (Protection of Employment) Regulations 1981). He also inherits the former employer's duty to pay or to continue to pay SMP to an employee who satisfies the qualifying conditions for the payment of SMP (or would have done so had the transfer or sale not intervened). Regulation 14 of the Statutory Maternity Pay (General) Regulations 1986 provides that, when a business is transferred as a 'going concern, an employee's employment with her former employer (the transferor) must be treated (for SMP purposes) as continuous with her employment with her new employer (the transferee). When deciding whether or not an employee is entitled to SMP, the transferee employer must (if need be) take into account her earnings and period of employment with her former employer.
- Certain breaks in employment can count as periods of employment for SMP purposes. If, for example, an employee had previously resigned or been dismissed because of ill-health or injury, each of the intervening weeks of absence will count as a period of employment so long as she is re-employed by the same employer (or a successor of his) within 26 weeks of that resignation or dismissal. The same 'rule of thumb' applies to gaps in employment occasioned by the seasonal nature of an employee's work or by some unexpected occurrence (such as a fire or flood) that results in the termination of her employment – so long as she has been given to understand that she would be re-hired (and is re- hired) at the start of the new season or on completion of renovations, or whatever
- A week during the whole or part of which a woman does no work because of a stoppage of work due to a trade dispute does not break the continuity of her employment. However, that week must be discounted when computing her total period of employment for SMP purposes – unless she can prove that at no time did she have a direct interest in the trade dispute in question (regulation 13, Statutory Maternity Pay (General) Regulations 1986). For example, a pregnant employee, who had otherwise worked for her employer for, say, 28 weeks by the end of the 15th week before her EWC, would forfeit her right to SMP during her maternity leave period if her employer 's records reveal that a trade dispute had prevented her from working during three of those 28 weeks, unless she can satisfy her employer (or, indeed, an Inland Revenue 'decision-maker') that she had no direct interest in the dispute in question. However, if not entitled to SMP, she might well qualify for the state maternity allowance (MA) discussed at the end of this section.
- There are two points to be emphasised in relation to the 26-week rule. First, a pregnant employee will not satisfy that rule (and will not, therefore, qualify for SMP) unless she continues to be employed by her employer up to and into the 15th week before the expected week of childbirth. If she is employed for at least one day in that 15th week, the whole of that week will count in computing her length of service for SMP purposes. She will also satisfy the 26-week rule if she gives birth (unless her child is stillborn within the first 24 weeks of pregnancy) before the beginning of that week if, but for that event, she would have completed 26 weeks' service by the end of that 15th week. However, she will not be entitled to SMP if she resigns or is dismissed before the beginning of the 15th week, regardless of her length of service at that time.
- To qualify for SMP an employee must not only satisfy the 26-week rule but must also have average earnings equal to or higher than the current earnings threshhold for SMP purposes. From 6 April 2003, that threshold is £77 per week.
- For SMP purposes, the expression 'earnings' means a woman's gross wages or salary derived from her employment, plus any and all overtime payments, bonuses, fees, commission, holiday pay, payments received under an occupational sick pay scheme, and statutory sick pay (SSP). Earnings in this context also include any sum payable by way of arrears of pay, or remuneration under a protective award in pursuance of an order by an employment tribunal under the provisions of the Employment Rights Act 1996. For a more exhaustive definition, the reader should consult the current DSS leaflet NP15: Employer's Guide to National Insurance Contributions.
- If an employee is paid a salary of £10,000 a year, her employer should not have to reach for his pocket calculator to confirm that she earns an average of £77 or more a week. A calculator will only be needed if an employee's gross weekly earnings vary with the amount of work done and occasionally dip below that 'lower earnings limit'. Average weekly earnings are calculated by adding together the gross amounts paid to an employee over the period of eight consecutive weeks up to and including the last payday immediately preceding the end of the 15th week before the expected week of childbirth.
Note If an employee gives birth before or during the 15th week before the expected week of childbirth, her average weekly earnings must be calculated over the period of eight weeks ending with the last payday before the baby was born. - If an employee is paid weekly on or about the same day of the week, her average weekly earnings will be one-eighth of the aggregate of the gross amount paid on each of the eight paydays preceding the Saturday of the 15th week before her expected week of childbirth. If she is paid monthly (eg, on or about the last working day of the month), her average weekly earnings will be calculated (i) by adding together the gross amount paid to her on the last payday before the end of that 15th week and all gross payments made to her during the eight weeks preceding that payday, (ii) then by multiplying the total by six, and finally (iii) by dividing the resultant figure by 52.
Excluded categories
- An employee is excluded from entitlement to SMP, whatever her earnings or length of employment, if, at any time during the week in which her maternity pay period begins she is in (or is taken into) 'legal custody' (that is to say, is detained by the police, arrested, or in prison).
- Also excluded from SMP is any foreign-going mariner employed by a UK employer while under contract for which her employer pays a special rate of National Insurance contributions.
- The steps to be taken when an employee is excluded from SMP are outlined in Procedure when SMP stops later in this section. It is important to stress that, once an employee is excluded from SMP, the exclusion persists throughout the remainder of the relevant maternity pay period.
- In the normal course of events, an employer must stop paying SMP to an employee once she has been paid her full 26-week entitlement or when she returns to work, whichever occurs sooner. As SMP payments are for calendar weeks only, payments must end with the last weekly payment immediately preceding the date on which the employee returned to work. If an employee occasionally interrupts her maternity pay period to help out in the office (or wherever) for a day or two (in one week) or for several days (spanning two or more weeks), she cannot lawfully be paid SMP for any such week. Although SMP payments can restart for weeks in which she does no work, her maternity pay period cannot be extended to compensate for the loss of SMP for any intervening weeks.
- There are a number of other circumstances that will bring an abrupt end to SMP payments – whether or not the employee in question has received her maximum SMP entitlement. Thus, SMP payments must stop (and stop altogether):
- if the employee dies – in which event her last weekly payment of SMP will be for the payment week ending with the week in which death occurred;
- if she is taken into legal custody – in which case, her employer's SMP liability ends with the last weekly payment before the date on which she was taken into custody;
- if she starts work for another employer during her maternity pay period – in which event, her (former) employer's liability to pay SMP, ends with the last weekly payment immediately preceding the day on which her new employment began.
It follows that an employee, who has not exhausted her full entitlement to SMP, must inform her (erstwhile) employer if she starts work with another employer, or if she is taken into legal custody during her maternity pay period. A woman is said to be in legal custody if she is arrested by the police, but not if she is voluntarily helping the police with their enquiries.
- Employers who cannot pay (or are obliged to cease paying) SMP to an employee because she is either in an excluded category or is in (or has been taken into) legal custody, must complete and sign form SMP1 (available from local Benefits Agency offices) and send it to the employee within seven days of deciding that she is not entitled to SMP or within seven days after the end of the week for which the last payment of SMP was made. If they have not already done so, they must also return the original of the employee's Certificate of Expected Confinement (Form Mat B1 or its equivalent). The employee will need that certificate in support of her claim for the state maternity allowance (MA) discussed at the end of this section. The employer should first make photocopies of Forms SMP1 and Mat B1, to be kept on on file for a period of at least three years from the end of the tax year in which they were issued.
- The very complexity of the SMP scheme suggests that employers have a moral obligation (if not an implied duty in law) to ensure that female employees are aware of their rights under that scheme. To encourage or pressurise a pregnant employee into resigning, before she has satisfied the 26-week rule, could be construed by an adjudication (or decision- making) officer of the Inland Revenue (or, indeed, by an employment tribunal) as an attempt by her employer (albeit fruitless) to avoid liability for SMP. A dismissal for that reason alone would also be self-defeating. In either situation, the employer would almost certainly be ordered to pay SMP to the employee or face prosecution and a heavy fine.
Instruction and training
- In organisations employing sizeable numbers of women, the personnel and training departments may take it upon themselves to conduct a series of in-house seminars – not only for the benefit of pregnant employees and those of 'reproductive capacity' (to borrow a phrase from the Management of Health & Safety at Work Regulations 1999), but also as a means of ensuring that managers and supervisors are well- placed to counsel (and not inadvertently to mislead) such employees about their maternity rights should they become pregnant, and to instruct them about the correct procedures for securing those rights. In smaller companies (that may or may not have a personnel function), the company secretary or site manager should nonetheless encourage pregnant employees to discuss their situation with him (or her) in confidence to determine what they need to do to secure and protect those rights.
- If an employer is of the opinion that a particular employee does not qualify for SMP, or that SMP payments must stop at a certain point during an employee's maternity pay period (eg, before she had been paid her full entitlement to SMP), he should explain his reasons to that employee (preferably in person) before issuing Form SMP1. There may, for instance, be disagreement about the method used to calculate the employee's average weekly earnings or her total period of employment, and so on. Such issues may be explored and possibly resolved using normal grievance procedures. But if, in the event, the employee is still unhappy about her employer's decision, she has the legal right to insist on a written statement containing the following particulars:
- the reasons why the employer considers that the employee is no longer entitled to SMP or why SMP payments must end;
- the weeks when SMP can be paid, and the weeks for which the employer disclaims any liability to pay SMP; and
- the amount (if any) of SMP payable during specified weeks.
An employer must respond to the employee's request for a written statement within a reasonable time. Given that he (or she) must issue Form SMP1 not later than seven days after his decision not to pay (or to cease paying) SMP, it is suggested that he would be acting unreasonably if he failed to provide an accompanying written statement within that same seven-day period.
Intervention of 'decision maker'
- If, having received a written statement from her employer that he is unable to pay (or is about to cease paying) SMP, the employee concerned is still unhappy about his (or her) decision, she may apply to an officer of the Inland Revenue (the 'decision maker') and ask for her complaint to be investigated.
Note An employer is not free to approach an officer of the Inland Revenue concerning his (or her) decision to pay or not to pay SMP. Such an approach can only be made by an employee or by the Secretary of State (per the Statutory Sick Pay & Statutory Maternity Pay (Decisions) Regulations 1999. - On receipt of a complaint about the amount of SMP paid, or about an employer's decision not to pay (or to cease paying) SMP, the decision maker will ask for further written particulars from both parties, together with any evidence to support their respective points of view. However, neither party will be asked to appear before the officer. Nor will there be an exchange of evidence between the parties unless the officer's decision is appealed to a Social Security Appeals Tribunal. The officer will convey his (or her) decision to both the employer and the employee.
- If it is decided that SMP should be (or should have been) paid, the employer must comply with that decision within a specified period – unless he (or she) decides to appeal. If it is decided that SMP is not payable (or that the amount paid is correct), the employee may either accept that decision or register an appeal with the same appeals tribunal. The procedure for doing so (and the time limits for registering an appeal) will accompany the decision maker's decision.
Appeals
- In most cases, the decision of the Social Security Appeals Tribunal will be final and binding on both parties. In some circumstances there will be a further right of appeal to a Social Security Commissioner. An employer who fails or refuses to pay SMP, when ordered to do so, is guilty of an offence and liable on conviction to a fine of up to £1,000.
- Briefly, an employer can recover 92 per cent of the gross amount of any SMP due and paid to a qualified employee by deducting that amount from the total amount of employees' and employers' National Insurance contributions payable (together with income tax) to the Collector of Taxes within 14 days of the end of each income tax month. An employer who qualifies for Small Employer's Relief may recover 100 per cent of the gross amount of SMP payments made, plus a further 4.5 per cent as compensation for National Insurance contributions paid on SMP.
Note An employer qualifies for Small Employer's Relief in 2003/04 if he (or she) paid less than £40,000 total gross Class 1 National insurance contributions in 2002/03. The figures are routinely reviewed/adjusted each year. - While an employer is free to recover 92 per cent or more of the SMP he (or she) has paid, either at the end of the tax month in which the SMP was paid or at the end of any subsequent tax month, he should endeavour to recover the full amount due by the end of the relevant tax year. If he is unable to do so, he should seek the advice of his local Benefits Agency office before taking any action to recover the amount outstanding.
- The Statutory Maternity Pay (General) Regulations 1986 (as amended) require employers to maintain specified records associated with the payment of SMP. Furthermore, those records must be kept for a period of at least three years after the end of the tax year to which they refer. The penalty for non-compliance is a fine of up to £1,000, plus a further fine of up to £40 for each day of continued non-compliance.SMP records that must be maintained are:
- a record of the date notified by a pregnant employee as being the date on which she intends her maternity leave period to begin;
- a record of any week (or weeks) within the maternity pay period for which SMP was not paid, and the reasons for non-payment; and
- the original of Maternity Certificate Form Mat B1 (or its equivalent) provided by an employee who has been paid SMP;or a copy of that certificate (or its equivalent) if the original was (necessarily) returned to the employee, eg when the employer's liability to pay SMP ended.
An employer may keep SMP records in whatever form he chooses, so long as they are conveniently accessible and contain the required information. However, the Inland Revenue has produced an information sheet (Form SMP2) which most employers will find helpful. Supplies of these forms are available on request from the Employer's Orderline on 0845 7 646 646. - Inland Revenue inspectors have the right to enter an employer's premises and to insist on the production of SMP records in pursuit of their investigations into the payment (or non-payment) of SMP. It is an offence for an employer to fail to maintain or produce such records. The production of false or 'doctored' records could lead to prosecution and a fine of up £5,000 and/or imprisonment for a term of up to three months.
- An employer has the right to decide how a pregnant employee should notify him (or her) about her intended absence on maternity leave. If he wants notification to be given in writing (perhaps on a form he has designed and provided for that purpose), it follows that he must see to it that his (female) employees know and understand what procedure to follow should they become pregnant. Furthermore, he should keep details of his 'notification' rules (and evidence as to how those rules were promulgated) on file, to be produced for inspection by Inland Revenue inspectors should an employee decide to challenge her employer's decision not to pay SMP.
- Other useful records will include the employer 's calculation of an employee's average weekly earnings for SMP purposes and details of the periods of employment (including employment with a previous or associated employer) which were taken into account when determining an employee's entitlement (if any) to SMP.
Dealing with mistakes
- If an employer has paid too much or too little SMP; or pays SMP to an employee who is not entitled to receive it; or mistakenly issues form SMP1 when SMP should have been paid; or makes too great or too small a deduction from his end of month NIC payments to the Collector of Taxes, he should act quickly to remedy the situation.
- If an employer has overpaid SMP, he (or she) may or may not consider it appropriate to recover the overpayment from the employee herself. But if, as seems likely, he has deducted too great an amount from moneys otherwise payable to the Collector of Taxes at the end of the relevant tax month, he must restore the amount overpaid at the end of the following tax month. If the error is not discovered until after he has sent his end-of-year return to the Inland Revenue, and the return is no longer held by his local tax office, he should contact his local Social Security office for advice on what to do next.
- If an employer has underpaid SMP to an employee, he (or she) need not raise the matter with the employee's local DSS office unless he has also incorrectly issued Form SMP1. However, the underpayment must be made good to the employee at the earliest opportunity.
- If an employer discovers that he (or she) has mistakenly withheld SMP from any employee (having already issued her with Form SMP1), he should notify her of his error and commence SMP payments immediately. At the same time, he must contact the employee's local benefits office to prevent (or halt) any payments of the state maternity allowance (MA).
- SMP payments should ordinarily be made on the employee's usual pay day. While there is nothing in law to prevent an employer paying the full amount of SMP due in a lump sum at the beginning of an employee's maternity pay period, he (or she) could face problems recovering part of that amount if the employee dies or starts work with another employer before the expected 26-week maternity pay period has run its course. Whether or not an employer in such a situation manages to retrieve the amount of SMP overpaid, he will still be liable to pay back to the Collector of Taxes the amount wrongly deducted from his monthly NIC payments.
Maternity Allowance (MA)
- The State Maternity Allowance (MA) is a weekly benefit payable for a period of up to 26 weeks to employees who do not qualify for SMP. The allowance is also available to self-employed women and to women who have recently been employed. There are two rates of MA. To qualify for MA, a woman must have been employed or self-employed in at least 26 of the 66 weeks ending with the week before her EWC (the test period). There are two rates of MA: the standard rate and the lower rate. The standard rate is £100 a week (or 90 per cent of average weekly earnings, if these are less than £100) payable to a woman with average earnings at least equal to the current MA threshhold limit of £77 a week. Women whose average weekly earnings are less than £77, but at least £30, will receive 90 per cent of their average weekly earnings during that 26-week period, subject to a maximum of £100 a week. A woman who does not qualify for MA, may be entitled to a maternity payment from the Social Fund (using Form SF 100).
- MA is not payable until an employee either stops work or begins her ordinary maternity leave – bearing in mind that an employee who does not qualify for SMP does not thereby forfeit her right to ordinary or additional maternity leave. An employee who is in receipt of MA must notify the DSS if she is taken into legal custody, as this may affect her continued entitlement to the allowance.
SSP and SMP
- As was indicated earlier in this section, an employee cannot legally be paid statutory sick pay (SSP) and SMP in respect of the same week. Unlike SSP, which can be paid for a single qualifying day of sickness absence, SMP is payable in respect of whole weeks only. Accordingly, once the maternity pay period begins, payments of SSP must end. The same rule applies once an employee who is not entitled to SMP begins her ordinary maternity leave period (in respect of which period, she might well qualify for the MA.
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