As an employer, you’ll no doubt find yourself faced with managing maternity leave within your business at some stage.
The law in this area can be confusing, so it’s important to get to grips with the regulations in order to prevent discrimination claims.
Not only that, but managing maternity leave is also an important way to build staff satisfaction and motivation, improving the chances of your employee continuing to work for you after their maternity leave ends.
In this guide we’ll cover:
- Maternity leave entitlements
- Maternity leave
- Maternity pay
- Managing a pregnant employee
- Benefit entitlements and annual leave
- KIT days
- Return to work
- Flexible working
Maternity leave entitlements
Pregnant employees are entitled to the following as part of their maternity leave:
- Time off for ante-natal appointments
- Up to 52 weeks off (26 weeks Ordinary Maternity Leave and 26 weeks Additional Maternity Leave)
- The length of time they have worked for you or the number of hours they work does not affect how much maternity leave they can take
- They can start their leave up to 11 weeks prior to the due date
- The benefits of all normal terms and conditions of employment – job opportunities, pay rises, annual leave accrual etc, with the exception of normal pay
- Two weeks of compulsory leave following the birth
- Up to 10 ‘keeping in touch’ or ‘KIT’ days
New mothers also have a legally protected right to return to work, subject to certain limited exceptions, and certain enhanced rights over other employees, such as first refusal of alternative employment if her original post is made redundant.
When does an employee need to notify you of their pregnancy?
By law, your employee must notify you of their pregnancy at least 15 weeks before the expected due date, giving you either a MATB1 form or other medical confirmation. The law requires you to acknowledge this within 28 days of receiving the notice, letting your pregnant member of staff know their entitlements to maternity leave and pay.
How long is maternity leave?
Maternity leave is split into two periods:
- 26 weeks of Ordinary Maternity Leave (OML)
- 26 weeks of Additional Maternity Leave (AML)
The first period – OML – starts when the expectant mother goes on leave before the birth.
Should the pregnant employee leave work during the four weeks prior to the expected week, due to pregnancy-related illness, this would automatically start OML. OML wouldn’t automatically start if she had a day off for a cold, for example.
If an employee wishes to extend their maternity leave beyond the 26 weeks of OML, they enter Additional Maternity Leave (AML).
The main difference between OML and AML is that if it is no longer ‘reasonably practicable’ to offer an employee on AML their old job back, you can offer appropriate similar employment, provided it’s on no less favourable terms.
Mothers are now also eligible to share their leave with their partner in the form of Shared Parental Leave.
When does maternity leave start?
The earliest date an employee can start their maternity leave is 11 weeks prior to the expected due date.
Typically, pregnant staff start their maternity leave between two and four weeks before the week they expect to give birth.
However, if your employee would like to leave work early, perhaps due to pregnancy complications, they can either choose to take annual leave prior to starting their maternity leave, or take sick leave if they are not well enough to be at work.
Early birth and complications
In the instance that the baby arrives prematurely, maternity leave automatically starts on the day after the birth.
Where a baby is stillborn after twenty-four weeks, or passes away while the mother is on maternity leave, an employee is still entitled to their full maternity rights.
Compulsory maternity leave
For the two weeks following the birth of her baby, you can’t allow your employee to work for you and she must take this time as a recovery period. For factory workers, the compulsory period is 4 weeks.
An employee will qualify for Statutory Maternity Pay (SMP) for a period of 39 weeks if she:
- is earning above the lower earnings limit (this amount changes annually)
- has given you the necessary 15 week notice of their pregnancy
- has provided an MATB1 form or medical confirmation
- has worked for you continuously for 26 weeks, up to the 15 week notice.
If your employee isn’t eligible for SMP, then you only need to place her on unpaid maternity leave until the date she returns to work.
She may, however, be entitled to claim maternity allowance, and you should make her aware of this.
Enhanced maternity pay
Some employers choose to offer enhanced maternity pay, increasing the amount payable to mothers above the level of SMP. This can be an attractive benefit that could help with recruitment and retention. When considering this though, you need to take into account the additional financial burden this could place on your business, as you’ll usually also have to pay someone to cover the work in the employee’s absence.
If you do offer an enhanced scheme you should also consider whether you will mirror this across adoption and shared parental leave. There’s still some legal uncertainty around whether failing to mirror an enhanced maternity pay scheme across your other family-friendly leave schemes could be considered discrimination.
If you’re offering enhanced schemes, we’d also recommend adding in a payback period, so that if the employee doesn’t return to work after their leave period, they must repay the enhanced element of the pay.
Managing pregnant employees
All pregnant women are entitled to reasonable time off to attend antenatal appointments with their midwife or GP.
This can often extend to time off to attend antenatal classes including pregnancy yoga and relaxation.
You’d only be expected to pay someone while attending these types of classes if they provide you with medical evidence that it is required, and that no classes were available outside working hours.
Looking after pregnant employees in the workplace
Once you’ve been notified that your employee is pregnant you have an additional duty of care to ensure that you don’t expose her to any hazards or risks that could harm her or the unborn baby.
You should undertake regular risk assessments – we recommend every 8 weeks – starting with your first meeting to discuss the employee’s entitlements to leave and pay.
Be prepared to adapt her environment as much as you practically can to avoid any risks.
Pregnancy-related sickness absence is common and should be paid in the same way as any other sickness.
The difference, however, is that it should be recorded separately and disregarded in any future employment-related decisions. A pregnant employee shouldn’t be given an absence related warning in relation to their pregnancy.
In the instance that your employee has a pregnancy-related absence during the four weeks before their official due date, you can bring forward the start of their maternity leave.
During maternity leave, the employee is entitled to benefit from all the normal terms and conditions of employment (except normal pay), such as salary increases, bonuses, full benefits (including company car if the pregnant employee has one), job opportunities, even annual leave accrual – which often comes as a surprise to many smaller employers.
Maternity leave and annual leave
Even though an employee is on maternity leave she’s still entitled to annual leave in that year.
Annual leave is accrued throughout the maternity leave period, and an employee has the right to carry this leave over to the following leave year. Do be mindful of this when planning your employee’s return to work.
Quite often, employees will opt to take a bulk of annual leave immediately prior to returning to work as a way of extending the time they have at home prior to returning. Annual leave should be booked in the normal way, and therefore an employee cannot assume that you will grant this request.
If a conflict arises with business priorities, you are entitled to decline the leave request and suggest alternatives.
During maternity leave, the employee can work up to 10 days without losing any Statutory Maternity Pay (SMP). These are called ‘keeping in touch’ (KIT) days.
These days aren’t compulsory, and you don’t have the right to insist the employee attends them, but it is good to encourage them as they help the employee stay in touch with developments in their job, or their company, which can help them ease back into work.
It’s important to note that each time an employee comes into work for a KIT day, it’s counted as one of the ten days, regardless of how many hours of that day were spent in work, i.e. the KIT day allowance can’t be split over 20 half days.
Regardless of whether KIT days are taken, we recommend that you keep in regular informal contact. Just try and ensure this isn’t excessive or intrusive – perhaps a quarterly phone call.
Although the law doesn’t require you to pay the employee on maternity leave for KIT days over and above her maternity pay, it’s widely accepted that the employee should receive their contractual pay if they’re undertaking any work as there’d be no incentive to work a KIT day if they did not receive any pay for doing so. Their SMP can be offset against this, however.
Returning to work
Unless your employee has notified you otherwise, it’s always best to plan on the basis that she’ll take the full 52 weeks’ leave.
Request to return to work early
If the mother decides she would like to return to work earlier than planned, she needs to give you at least 8 weeks’ notice. If she doesn’t provide this notification, you can, if you need to, insist that she doesn’t return until the 8 weeks has passed – regular communication will usually avoid this happening. Try to be reasonable and base your decision on your business needs at the time.
Asking an employee about their return to work
One advantage of keeping in touch with employees on maternity leave is that you can use these opportunities to informally discuss their return to work plans, make sure they’re aware of their entitlement to flexible working, and sound out whether they intend to make use of this entitlement, and in what capacity.
While you can enquire about their plans, the employee isn’t obliged to confirm them until 8 weeks before their intended return.
Protected and enhanced rights
When a mother starts work again, she has the automatic right to return to her existing terms and conditions of employment – the same post, pay and hours (providing no redundancies have taken place).
Any changes that take place during her maternity leave that could result in her role being changed or her post ceasing to exist, should be communicated to her while she is on maternity leave, so that she is fully included in any proposals for change and any necessary consultation process.
It’s important to remember that this is one of the situations where the employee returning from maternity leave has enhanced rights. If her post is at risk of redundancy and there is suitable alternative employment, she must be offered the opportunity to accept that alternative employment before her colleagues are considered.
When the employee doesn’t return to work
If an employee decides not to return to work, or there is a dismissal for any reason during the maternity leave, it’s important to note she’ll still be entitled to receive Statutory Maternity Pay for the SMP period, even though her contract is being terminated.
There’s no specific entitlement for a mother to request part-time working when she returns to work, but she is entitled to making a flexible working request. If you’re concerned that the business will struggle to accommodate the request, it can be a good idea to trial the request out to help you assess whether your concerns are justified and to demonstrate that you have done your utmost to be accommodating.
Get HR support
If you’re struggling to find time to get to grips with the legal requirements surrounding maternity leave, our HR consultants can help.
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