DAVID ROYDEN - EMPLOYMENT SOLICITOR
UK EMPLOYMENT LAW

David Royden is a Partner with Laytons Solicitors and Head of Employment Law, Manchester, UK

Laytons Solicitors is a national law practice specialising in all aspects of Company and Commercial Law

Laytons Solicitors, 22 St John Street, Manchester M3 4EB.
Tel: +44 (0) 161 834 2100
Fax: +44 (0) 161 834 6862

Offices at London, Manchester and Guildford, UK

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MATERNITY LEAVE AND MATERNITY PAY

All pregnant women have the right to take at least 26 weeks' maternity leave which is referred to as "Ordinary Maternity Leave". Some women will be entitled to a longer period of leave because they satisfy certain qualifying conditions. This longer period is referred to as "Additional Maternity Leave".

It is unlawful to dismiss (or single out for redundancy) a pregnant employee for reasons connected with her pregnancy. Such treatment will constitute grounds for automatic Unfair Dismissal and/or Sex Discrimination. At the end of the maternity leave period she is entitled to resume her normal job on the same terms and conditions as if she had not been absent. If however, a redundancy situation has arisen during her Ordinary or Additional Maternity Leave, or if there is some other genuine reason why her original job is no longer available at the end of her Additional Maternity Leave, she must be offered any suitable alternative work that is available at the point when she wants to return.

ANTE-NATAL CARE

Pregnant mothers who have made an appointment to receive ante-natal care on the advice of a registered medical practitioner, registered midwife or registered health visitor, have the right (having first obtained the employer's consent) to take time off with pay to keep the appointment. The woman must provide evidence of each appointment and, except for the first, produce a certificate stating that she is pregnant.

HEALTH AND SAFETY

Employers should ensure as far as possible that a pregnant employee notifies the employer as soon as possible that she is aware that she may be pregnant. This is to ensure that the employer can assess any health and safety risks to the woman and her unborn child. If any risk is identified, the employer should notify the woman immediately and make arrangements to eliminate that risk.

ORDINARY MATERNITY LEAVE

Entitlement

Pregnant women are entitled to 26 weeks' Ordinary Maternity Leave regardless of length of service or hours of work. This entitlement covers time off, both before and after birth. During Ordinary Maternity Leave, the woman has the right to benefit from her normal contractual terms and conditions as if she had not been absent - other than for remuneration.

Action

The following information must be notified to the employer by the end of the 15th week before the Expected Week of Childbirth (“the EWC”) unless this is not reasonably practicable, failing which, the right to leave may be forfeited:

  • confirmation of the fact of pregnancy;
  • confirmation of the EWC;
  • confirmation of the date on which the woman intends to commence Ordinary Maternity Leave (this confirmation must be given in writing);
  • if so required by the employer, a certificate from a registered practitioner or a registered midwife stating the EWC.

The employer must respond to this notification within 28 days of receipt of this information and confirm her expected date of return to work if she is to take her full entitlement of Ordinary Maternity Leave and, if applicable, Additional Maternity Leave.

Ordinary Maternity Leave may start at any time after the beginning of the 11th week before the EWC or in any case the day after the birth.

Premature Birth or Work Absence

It may not be practicable for women to provide the required notice in advance. If the woman should give birth prior to giving the required notice she should, as soon as is reasonably practicable, notify the employer that she has given birth and the date of the birth. Such notice must be given in writing.

If the woman is absent from work wholly or partly because of the pregnancy after the beginning of the fourth week before the EWC, the maternity leave period will commence automatically. If the woman has not already provided the required notice she must, as soon as is reasonably practicable, notify the employer that she is absent wholly or partly because of her pregnancy. Failure to provide the required notice at the correct time or as soon as is reasonably practicable thereafter may result in the loss of entitlement to Ordinary Maternity Leave.

Right to Return to Work Following Maternity Absence

A new mother should return to work on the first working day after the expiry of the 26 week period. It is not necessary to notify the employer of her return unless she wishes to return earlier, in which case, no less than 28 days' notice must be given. Should she not give the notice required, the employer may postpone her return for 28 days or until the expiry of the 26 week period, whichever is the earlier.

Compulsory Maternity Leave

Statute prohibits a mother from returning to work until at least two weeks after childbirth. The two week period commences with the day of childbirth.

ADDITIONAL MATERNITY LEAVE

Qualifying Conditions

A woman is entitled to take Additional Maternity Leave if she has:

  • worked continuously for the employer for at least 26 weeks at the beginning of the 14th week before the EWC;
  • provided the information required by the employer for those women wishing to take Ordinary Maternity Leave (see 2 above).

Additional Maternity Leave may start at any time after the beginning of the 11th week before the EWC and in any case immediately after Ordinary Maternity Leave.

Right to Return

Women have the right to return to work up to 26 weeks after the expiry of the period of Ordinary Maternity Leave. The employer may write to her to require her to confirm:

  • the date of childbirth; and
  • whether she intends to return to work after the Additional Maternity Leave.

During the Additional Maternity Leave, women have the right to return to work at any time having given no less than 28 days' notice. Should a woman not give the notice required, the employer may postpone her return for 28 days or until the expiry of the Additional Maternity Leave period, whichever is the earlier.

Postponing Return

If a registered medical practitioner certifies that the woman is not capable of work, she has the right to postpone her return from Additional Maternity Leave by up to 4 weeks after the expiration of the 26 week period (or the date of return which she notified to the employer, whichever is the earlier). Likewise, the employer may postpone the date of her return by up to 4 weeks, provided that the employer notifies her of the reason.

STATUTORY MATERNITY PAY

If a woman stops work to have a baby, she is entitled to Statutory Maternity Pay (“SMP”) during her maternity leave provided the following conditions have been met:

  • she has been employed by the employer for at least 26 weeks by the end of the 15th week before the EWC;
  • she has average earnings at or above the lower earnings limit for the payment of national insurance contributions for the 8 weeks before the 14th week before the EWC;
  • she has given 28 days' notice to the employer that she intends stopping work due to pregnancy and to receive SMP;
  • she has medical evidence of the expected week of childbirth;
  • she is pregnant (or has already given birth) at the start of the 15th week before the expected week of childbirth; and
  • she has stopped work (wholly or partly) because of pregnancy.

If a woman is entitled to SMP, the first 6 weeks are payable at the higher rate, being ninety per cent (90%) of her average weekly earnings. For the following 20 weeks, she will receive the lesser of ninety per cent (90%) of her average weekly earnings or the standard rate determined from time to time.

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