Maternity leave and the rights of pregnant employees and new mothers

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Maternity leave and the rights of pregnant employees and new mothers

All pregnant women are entitled to up to 26 weeks’ ordinary maternity leave (OML). The earliest OML can begin is on or after the beginning of the 11th week before the expected week of childbirth (EWC). The employer must be notified by the employee of the intention to take maternity leave by the end of the 15th week before the EWC. During OML, an employee is subject to the same terms and conditions of employment that would have applied but for the absence (except the right to be paid the same amount of salary, unless the contract states otherwise). An employee who returns to work after OML is entitled to return to the job she occupied immediately before maternity leave began. As well as OML, an employee has the right to take up to 26 weeks’ additional maternity leave (AML). During AML, an employee is entitled to the implied obligation for the employer to preserve mutual trust and confidence, disciplinary and grievance procedures, terms of employment relating to notice of termination by the employer and terms relating to contractual redundancy. An employee can therefore take a total of 52 weeks’ maternity leave.

Statutory maternity pay

An employee is entitled to statutory maternity pay (SMP) if she has been continuously employed for at least 26 weeks at the end of the Qualifying Week, which is the 15th week before the EWC, and is still employed during that week. It is payable to women who earn at least the lower earnings limit for national insurance contributions in the relevant period. Eligible employees are currently entitled to SMP for up to 39 weeks. Enhanced payments in addition to SMP can be agreed with the employee additionally.

SMP is payable at the following two different rates:

First six weeks: the "earnings-related rate" (90% of the employee's "normal weekly earnings")
Remaining 33 weeks: the "prescribed rate" (set by the Government each tax year and is currently £112.75 a week) or the earnings-related rate, whichever is lower.

Keeping in touch

An employer may make reasonable contact with an employee from time to time during maternity leave. This is encouraged for forward planning for your business. A woman may now work during her maternity leave for up to 10 days for her employer without bringing OML or AML to an end and without losing her entitlement to SMP. Employees may be paid during these keeping in touch (KIT) days at a rate agreed between the parties.

Other rights

Every pregnant employee has the right to be allowed a reasonable amount of paid time off for antenatal care.
Suitable rest facilities for pregnant employees, those breastfeeding or those who have given birth in the last 6 months should be provided by employers.
An employee who is dismissed during pregnancy must be supplied with a written statement explaining the reasons. It is an automatic unfair dismissal to dismiss an employee (or select for redundancy) because of pregnancy. Protection from dismissal, detriment or discrimination by reason of pregnancy or maternity should be provided.
If an employee is made redundant during OML or AML, she is entitled to redundancy pay.
If an employee wishes to return to work before the end of her leave she must give her employer 8 weeks notice of her date of return.
A new right to an additional period of paternity leave for fathers has been proposed by the Government in a recent consultation to enable fathers if the mother returns to work after six months, but before the end of her AML period. This is likely to be introduced in respect of babies due from April 2009.

Davenport Lyons is a corporate and rights law firm based in London's West End. To find out more about us and how we can assist SMEs please visit our website at www.davenportlyons.com.

© Davenport Lyons 2008. All rights reserved.
This document reflects the law and practice as at January 2008. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.