The first thing to clarify is the difference between maternity leave and maternity pay. Many people assume that these two entitlements run side-by-side but this is not the case. There is obviously a connection but it is important to be aware of the difference in duration – and sometimes entitlement.
- Standard maternity leave
- Shared parental leave and maternity pay
- Are you eligible for maternity leave?
- What happens if you’re ineligible for maternity leave?
- How to secure your maternity leave
- Starting your maternity leave
- Minimum and maximum maternity leave entitlement
- Extending your maternity leave beyond 12 months
- Changing your period of maternity leave
- Maternity leave, holidays and holiday entitlement
- What happens if your employer refuses maternity leave?
All pregnant employees have an entitlement to one year of maternity leave. Eligibility is not linked to your time with the employer, pay grade or the hours you work each week. If you are pregnant, and eligible, you are entitled to up to 12 months of maternity leave, no questions asked.
Before we look at the detail surrounding maternity leave entitlement, it is worth reminding ourselves of the issue of shared paternal leave/maternity pay. There are occasions where partners can split parental leave and maternity pay between each other. Under law, you can share up to 37 weeks of maternity pay and 50 weeks of maternity leave:-
- Sharing pay and leave between each other
- One partner taking all parental leave and maternity pay
In order to secure shared parental leave you must:-
- Both still be employed by your employer prior to the week before shared parental leave begins
- Be employed by the same employer for a minimum of 26 weeks by the end of the 15th week before the due date
- Share care of the child with your partner, child’s parent, joint adopter, civil parent or spouse
In the 66 week period before the child is due your partner must:-
- Have been in employment for at least 26 weeks – this does not need to be continuous employment and can include self-employment
- Have earned an average of at least £30 a week in any 13 of the 66 weeks
In order to be eligible for shared parental/maternity pay, there is a slight adjustment to the above rules. Prior to the 15th week before the child’s due date:-
- Your average pay over an eight week “qualifying period” must be at least £120
- You don’t need to have been an employee, as long as national insurance was paid through PAYE for at least 26 weeks
The rules regarding your partner are exactly the same as those for shared parental leave. In many cases it might be sensible to take advice as the various terms and conditions can sometimes become a little confusing.
Maternity leave is an entitlement given to employees. The term employee relates to individuals who have regular work with fixed hours from one employer. Unfortunately, those classed as “workers” are not entitled to maternity leave. This definition includes:-
- Those who work for an agency
- Casual workers
- Those on zero-hours contracts
On occasion, those who work for an agency can be deemed to be an employee of the agency. If this is the case then they will be entitled to maternity leave. If in doubt, ask the agency you are working for.
As a rule of thumb, those who are self-employed are not entitled to maternity leave. This is a somewhat grey area whereby those appearing to be self-employed may actually be employees. It is worth confirming your situation if:-
- The work you carry out for a company is out with your normal self-employed activities
- The work allocated to you by the company can’t be reassigned to another party
At first glance, this does seem to be something of a play on words, but it is certainly worth checking out if you are pregnant.
While not particularly common, some people have fallen pregnant again while on maternity leave for the birth of their previous child. This can obviously present a number of challenges and questions. For example:-
- You are not obliged to return to work between your pregnancies
- You have the same rights as during your first pregnancy
- You will still need to give 15 weeks’ notice to your employer before your due date
- Your second period of maternity leave can begin any time from 11 weeks before your due date
These dates can change if your baby was born early or you experienced a pregnancy related illness, prompting rest and recuperation.
The rules and regulations regarding maternity leave are different for those who are members of the armed forces/police service. For example, members of the armed forces who become pregnant are entitled to 26 weeks of ordinary maternity leave. Their role pre-and post-birth is a little more complicated and will depend upon their length of service and specific role. It is important to check your contract when you join up so that you are fully aware of the situation.
This particular scenario encompasses those working on a fishing boat, paid a share of profits as part of their remuneration. The crux of the matter revolves around whether they are an employee, self-employed or classed as a worker. If in doubt you should check your employment contract for further details.
Bizarrely it might seem, there are some situations where you are not entitled to maternity leave but you may be entitled to statutory maternity pay/maternity allowance. It is also worth noting that when you are pregnant, you immediately have statutory rights in the workplace for your situation. As soon as you inform your employer you are pregnant, the question of maternity leave and maternity pay should be addressed.
If your scenario is such that you are not entitled to maternity leave as such, you are legally obliged to take a minimum of two weeks off work after having the baby. This is extended to 4 weeks if you work in a factory. So, if for some reason you are not entitled to “normal” maternity leave, there is still a degree of entitlement.
There is a set procedure that you need to follow in order to secure your maternity leave in a timely and orderly manner. You are obliged to inform your employer, at least 15 weeks before your baby’s due date, of the following information:-
- Confirmation that you are pregnant
- Your baby’s initial due date
- Confirmation that you wish to take maternity leave
- A provisional start and end date for your maternity leave
It is important to note that the initial start and end date for your maternity leave is flexible. However, as and when the dates do change you will need to inform your employer as soon as possible.
When informing your employer that you are pregnant, and you wish to secure your maternity leave, it is important to maintain a real/virtual paper trail. So, it makes sense to either use email or written form to confirm the required information. Upon receipt your employer will:-
- Confirm the start and end date of your maternity leave, per your instructions
- Request a medical certificate such as a MATB1 form
If for some reason your employer does not reply with confirmation of your period of maternity leave, you should request this as soon as possible. It is important that all of this information is made available in a timely manner to avoid any confusion further down the line.
If for some reason you are not able to notify your employer of your pregnancy by the 15 week deadline, this will not normally be a problem. On occasion, it may not be practical to inform your employer by the deadline. This could be for a number of reasons such as:-
- Your employment began less than 15 weeks before your due date
- You weren’t aware you were pregnant
- You had been in hospital
In a perfect world, your employee would be informed before the 15 week deadline prior to your due date. In reality, the majority of employers will be somewhat sympathetic towards those in this situation. However, it is important to let your employer know as soon as possible if the deadline has passed.
Your maternity leave can begin from 11 weeks before your due date so there is a large degree of flexibility. However, there are scenarios where your maternity leave can start earlier than your chosen date:-
- If your baby arrives early
- If you have a pregnancy related illness, within the four week period before your due date
As you will find with the rules and regulations regarding pregnancy, maternity leave and maternity pay, they tend to be extremely flexible.
There are statutory minimum and maximum maternity leave periods which are:-
- Minimum of two weeks after the baby is born (rising to 4 weeks if you work in a factory)
- Maximum entitlement is 12 months
On occasion, for a number of different reasons, you and/or your partner may prefer to extend your maternity leave.
In this article we are covering statutory maternity leave. On occasion, some employers may have additional maternity leave options written into employment contracts. These options cannot reduce your statutory maternity leave below the minimum levels, but it can be extended beyond the 12 month statutory period.
In this scenario, any leave beyond the 12 month period which has been agreed with your employer will not normally include your statutory maternity leave rights.
There are obviously a number of issues to consider if you are looking to extend your maternity leave beyond the statutory 12 months, which include:-
- Whether your employment role will remain open after your additional maternity leave
- Whether the additional maternity leave will constitute a break in your employment – there are potential consequences with pension entitlement, redundancy, etc
- Whether your employer is willing to pay you any remuneration for the extra period
As the period of extra maternity leave is optional, there are no legal obligations on the part of your employer. This will simply be a negotiation between two parties – but ensure there is a paper trail regarding your request and resulting correspondence. Make sure everything is in writing; don’t take verbal agreements as gospel!
It may be that you are looking for a new flexible working rota or a period of unpaid leave after the birth of your child. Again, while there is no legal obligation on your employer to partake in such negotiations, many will be flexible and sympathetic. As with above, it is important there is a clear and concise paper trail of these discussions/negotiations.
As covered above, it is common for the initial agreed period of maternity to be adjusted for a number of reasons going forward. Some of these adjustments will relate to illness and medical conditions while others may be voluntary.
You are entitled to change your maternity leave, but you are obliged to give your employer enough notice:-
- At least four weeks’ notice before your new start date, if you wish to begin your maternity leave sooner
- If you wish to begin your maternity leave later, you must give your employer at least four weeks’ notice before your old start date
- Your employer is entitled to at least eight weeks’ notice before your new end date, if you wish to end your maternity leave sooner
- If you wish to end your maternity leave at a later date, you are obliged to inform your employer at least eight weeks before your old end date
From a legal standpoint, if your employer failed to provide your maternity start and end dates in writing, you can give reduced notice. In order to maintain a good working relationship with your employer, regular communication is essential. If all parties are honest and upfront, there should be no issues.
Even though you have informed your employer that you are pregnant, agreed the relevant maternity start and end dates, you are still entitled to take your statutory holidays. You can take your holidays immediately before or immediately after your maternity leave. In the event that you decide to “add” holidays to the end of your maternity leave, you will be deemed to have been back at work on the first day of your holiday.
As far as holiday entitlement goes, even during your maternity leave you will still be building up your holiday entitlement as normal. It is fairly common for those on maternity leave to have holidays left over at the end of the employer’s holiday period. In this scenario, your employer is obliged to allow you to carry-over your full entitlement (28 days over a 12 month period for a full-time worker) into the next holiday period.
As you can see from the information above, the rules and regulations regarding maternity are very in depth and cover a multitude of scenarios. There are very few “grey areas” so if you believe you are entitled to maternity leave, but your employer is refusing to honour this, you will need to take action:-
- Approach your employer on an informal basis, questioning their decision and presenting your proof
- If the informal approach fails, you will need to take out a formal grievance against your employer
- If your employer fails to act on an informal/formal approach, you will need to take professional advice
- The next stage tends to revolve around employment tribunals/conciliation services, with independent third parties considering the evidence and making a ruling
- Legal action through the courts is obviously not the preferred route but on occasion it can be the only route
It is extremely uncommon for employer/employee disputes surrounding maternity leave to end up in the courts. The majority are resolved through informal/formal proceedings, especially where there is strong supporting evidence available. While it is essential that you protect your entitlement to maternity leave, you do need to follow your employer’s specific procedures in this area.