Employee on maternity leave

Your rights during maternity leave

There is no doubt that protection offered to those on maternity leave has increased significantly in recent times. It is important that you are fully aware of your rights during maternity leave. The best way to describe your rights while on maternity leave is simple, as if you were still in the workplace.

Pay while on maternity leave

As we have mentioned in earlier articles, there are three basic types of pay while on maternity leave:-

Statutory maternity pay

Statutory maternity pay is the minimum requirement that employers are obliged to pay those going on maternity leave.

For the first six weeks of your leave you would receive 90% of your average gross weekly pay – averaged over an eight week period prior to the 15th week before your due date. For the remaining 33 weeks you will receive the lower of either £151.97 or 90% of your average weekly wage.

Contractual maternity pay

This is a voluntary contribution by your employer, which is over and above their minimum statutory obligation. It is important to be aware of any terms and conditions attached to contractual maternity pay. For example, if you decide not to return to work you may be obliged to repay all or part of your contractual maternity pay. However, whatever the terms and conditions over the additional payments, the statutory element of your maternity pay will never be repaid.

Maternity allowance

Maternity allowance is a payment provided by the government which is in effect a “catch-all” for those not eligible to statutory maternity pay/contractual maternity pay.

There are various terms and conditions when it comes to eligibility for these different types of maternity pay. It is important to do your research and take advice prior to arranging your maternity leave.

Pay reviews

Many people are unaware that even when you are on maternity leave, you are still entitled to benefit from any pay reviews. For example, if your company has an annual pay review then you will still benefit upon your return. When it comes to the statutory maternity pay calculation, any pay rise after your maternity leave began would have no impact. This calculation is based on average pay in the eight week period prior to the 15th week before your due date.

As many pay reviews will involve an element of individual performance, this can cause a degree of confusion. Legally, your employer is obliged to base their review on the time you were at work – prior to your leave. They cannot base any pay review on work productivity while on maternity leave, for obvious reasons. In the event that your employer considered your work productivity during your maternity leave, this is a type of discrimination. As a consequence, this could leave your employer open to legal action.

Sick pay

As a rule of thumb, it is highly unlikely that you would be able to claim sick pay while on maternity leave. In some cases it may be possible if you are still on maternity leave but your maternity pay has ended. Upon your return to work the situation changes but there are some issues to consider:-

Not in receipt of maternity pay on your first day of sickness

Assuming that you meet the criteria for sick pay when pregnant, in this scenario you would be entitled to claim statutory sick pay.

In receipt of maternity pay on your first day of sickness

The situation is a little different if you are already receiving maternity pay on your first day of sickness. You will not be eligible for sick pay until you have been back at work for a minimum of eight weeks.

Contractual sick pay

Some employers will pay above and beyond their statutory sick pay obligations, to which various terms and conditions may be attached. This is a conversation you should have with your employer before you begin your maternity leave. It is important to know your rights during maternity leave from day one.

Sick pay and maternity pay/maternity allowance

If you are not eligible for maternity pay/maternity allowance there are still conditions to consider with regards to statutory sick pay. You will not be able to claim statutory sick pay for 18 weeks after either:-

  • The start of your maternity leave
  • The birth date of your child

Those who experience pregnancy related illness during the four-week period before their due date are not able to claim statutory sick pay. In this scenario, it is more likely that your maternity leave would be brought forward, as well as any entitlement to maternity pay.

If in receipt of statutory sick pay prior to the above 18 week period, payments will cease when this period begins. Once the 18 week period has ended you are entitled to claim statutory sick pay, assuming that you are eligible. Under normal circumstances, this would involve a return to work in some shape or form.

Sick pay when maternity pay ends but maternity leave continues

There are numerous situations where maternity pay can end before your maternity leave. Normally, you would not be entitled to statutory sick pay if your first day of sickness was after your maternity pay had ended (while still on maternity leave). There may be some rare scenarios where you can claim statutory sick pay in this scenario. It is also highly unlikely that you would qualify for contractual sick pay, although this would be defined by the terms and conditions in your employment contract.

It is important to be aware of the standard conditions regarding eligibility for statutory sick pay. These include:-

  • Minimum average earnings of £112 a week in the previous eight weeks

As a consequence, unless your illness began just after your statutory sick pay ended, it is unlikely that you would qualify. Even if you were to qualify, you would still require a note from your doctor to confirm that under normal circumstances you would not be fit to work. As you review your maternity rights, you will soon realise that on occasion you will need supporting documentation.

Pension contributions

When looking forward to the birth of your child, pension contributions and future pension payments will probably be well down your list of considerations. However, it is important to be aware of your rights and your obligations while on maternity leave.

Maintaining pension contributions

To all intents and purposes you are still classed as in the workplace, even though you are on maternity leave. For example:-

  • Your employer will continue to make pension contributions on the same terms as those prior to your maternity leave (on your “normal” pay)
  • The default position for those on maternity leave is to continue contributing to their pension, although payments will be based on your maternity pay
  • If you pay a set 5% of your gross wage towards your pension fund, then future payments will be 5% of your maternity pay, until you return to work
  • There may well be an option to pause your pension contributions while on maternity leave, this is something to be discussed with your employer

In a perfect world you should continue to make pension contributions whilst on maternity leave. However, reality can sometimes be very different, with additional expenses and perhaps a “better” use of pension contributions in the short-term. It is important to balance your short-term requirements with your long-term pension plans.

Pension contributions and maternity pay

Due to individual circumstances you may not be eligible for any type of maternity payments, whether statutory, contractual or maternity allowance. In this scenario your employer would not be obliged to make any pension contributions while you are on maternity leave. It is the same where your maternity leave extends beyond the period during which you receive maternity pay.

When it comes to your own contributions to your pension fund while on maternity leave, whether in receipt of maternity pay or not, you can still make direct contributions. Whether these funds could be used more productively elsewhere in the short to medium-term is an individual preference.

Bonus payments

Your eligibility to bonus payments while on maternity leave will vary depending upon the specific circumstances and type of bonus. For example:-

Attendance based bonus

In essence, you are still entitled to an element of any attendance based bonus, based upon your actual time at work. Unfortunately, this is one of the rare occasions where maternity leave is not wholly included in your attendance figures. While you would not receive bonus payments based on maternity leave, your time at work calculation will still include:-

  • The first two weeks after your baby is born (four weeks if you work in a factory)
  • Keeping in touch days, which are organised directly with your employer

As an example, if you worked four months of the year and took eight months as maternity leave, your attendance based bonus entitlement would be based on four months and two weeks.

Length of service bonus

This subject is straightforward; your time on maternity leave will still count towards your length of service bonus. If your employer “decides” otherwise, they are breaking the law and leaving themselves open to legal action.

Company profit related bonus

In this scenario you should receive your full entitlement, no matter what percentage of the company year you were on maternity leave. If the bonus was specifically attendance based it might be different.

Discretionary bonuses

There may be scenarios where your employer decides to pay a discretionary bonus to all employees, such as a Christmas bonus. Your maternity leave would have no bearing on your entitlement and you should be treated the same as everybody else.

Holiday pay

There are specific rules and regulations when it comes to holiday entitlement and holiday pay, for those taking maternity leave. Your holiday entitlement will continue to increase during your time on maternity leave. In effect, your rights during maternity leave means you are still treated as if you were in normal employment.

Carry-over holidays

Obviously, there may be scenarios where you are unable to use up your holiday entitlement as a consequence of your maternity leave. For example, if you were in full-time employment you are currently entitled to 28 days holiday per year. In this situation your employer is obliged to allow you to carry-over a maximum of 28 days into the next holiday year.

Bank holidays

If your employment contract specifically mentions bank holidays, for example 25 days holiday a year plus 5 bank holidays, you could carry a maximum of 30 days into the next holiday year. This is something which many people on maternity leave fail to appreciate.

Updating your employer

While there are specific rules and regulations when it comes to contact between employers and employees during maternity leave, much of this should be common sense. Legally, your employer is allowed to “occasionally” contact you during your maternity leave. If you believe they are overstepping the mark, you are entitled to say so. However, it is sensible to discuss the timing of regular updates with your employer before you go on maternity leave. That way everybody knows where they stand!

Keeping in touch days

When discussing maternity leave, you may come across the term “keeping in touch days” which are becoming more commonplace. These are days on which your employer is allowed to contact you for work purposes. For example, you may have specific knowledge of clients or projects which are important to the smooth running of the business in your absence.

There are a number of conditions regarding keeping in touch days:-

  • The maximum number of keeping in touch days is 10 throughout your maternity leave
  • You should be paid as normal for keeping in touch days
  • Sometimes there may be specific conditions in your employment contract regarding keeping in touch days
  • Training and meetings count towards keeping in touch days
  • This type of contact is an option not an obligation, your employer cannot force you to agree
  • If you exceed the maximum keeping in touch days, there will be a reduction in your maternity pay
  • Each additional contact day over the maximum would see you deducted a full week of maternity pay for that week

There may be occasions where more than 10 keeping in touch days are required. In this scenario you would need to make a specific arrangement with your employer so that you do not lose out financially.

Changes in the workplace

While on maternity leave your employer is still obliged to let you know about changes in the workplace including:-

  • The opportunity to apply for promotions, in the same manner as your colleagues
  • Issues such as restructuring, redundancies and other actions which affect your working conditions

Updating you on changes in the workplace is not seen as a keeping in touch day. It is also important to note that your maternity leave cannot be a factor in any decisions which may impact your working life/working conditions. If your employer was to take your maternity leave into account, this is seen as maternity discrimination and would likely leave your employer open to legal action.

Protecting your rights during maternity leave

It is important to be aware of your legal rights when on maternity leave. Unfortunately, we have seen occasions where employers have:-

  • Failed to respect the legal protections in place for those on maternity leave
  • Discriminated against those who asked about their statutory maternity rights
  • Discriminated against those who enquired about/took their statutory maternity leave

On occasion, there may be redundancies or cost savings forced on your employer while you are on maternity leave. It is unlawful to take into account your maternity leave when deciding which employers should be made redundant. If you are sacked as a consequence of your maternity leave, or there was some kind of connection, this is also illegal.

While your employer should be well aware of their legal responsibilities and obligations in relation to maternity pay/leave, you also need to protect your own position. In the event of discrepancies or other issues arising in this area, you may need to remind your employer of your rights during maternity leave according to the legal framework in place.