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Employer’s responsibilities for maternity leave

In the UK, there are three different types of leave available for parents: maternity leave, paternity leave, and unpaid parental leave.

In the first blog of this series, we will be looking at employer’s responsibilities regarding maternity leave. Maternity leave allows employees to take time off work both during their pregnancy and following the birth of their child to recover and adapt to being a new parent.

Employers must ensure that they comply with their legal obligations and look to reclaim any Statutory Maternity Payments that they make.

This is especially important following the recent changes to redundancy protections for employees on maternity leave.

What are employees entitled to?

Employees who are pregnant can take up to 52 weeks of maternity leave. This is divided into two parts, with the first 26 weeks being ‘Ordinary Maternity Leave’ and the following 26 weeks classed as ‘Additional Maternity Leave’.

Unless the baby is born early, maternity leave can be taken up to 11 weeks before the expected week of childbirth.

Employees must take at least two weeks off after the birth, or four weeks if they work in a factory.

As well as this leave, pregnant employees are now entitled to enhanced protection from redundancy. This includes getting priority for alternative employment within the company.

Pregnant employees also face protection from discrimination under the 2010 Equality Act, as pregnancy is classed as a protected characteristic. This means that staff cannot be treated differently for being pregnant and going on maternity leave.

How much should staff be paid?

Whilst employers can opt to pay more than Statutory Maternity Pay (SMP) to their staff, you must ensure that you are paying at least the minimum.

SMP can be paid for up to 39 weeks, paid at the rate of:

90 per cent of their average weekly earnings (AWE) before tax for the first six weeks
£184.03 or 90 per cent of their AWE (whichever is lower) for the remaining 33 weeks

Tax and National Insurance will be deducted from this.

You can reclaim your payments even if you pay over the statutory amount. However, if you pay above SMP, you can only reclaim 92 per cent unless you qualify for Small Employers’ Relief.

Keeping correct records

To ensure compliance with HM Revenue & Customs (HMRC), you must keep records of maternity leave taken by staff.

This includes:

Proof of pregnancy
The date SMP began
Your SMP payments and dates
The SMP you have reclaimed
Any weeks you did not pay and why

These records must be kept for 3 years following the end of the tax year they relate to. Doing this ensures tax compliance as well as legal compliance.

Ensuring employees are eligible

To be eligible for SMP, your employee must:

Be on your payroll in the 15^th week before the expected week of childbirth
Provide you with notice
Provide proof of pregnancy
Been employed by you for at least 26 weeks before the 15^th week
Earn at least £123 a week (gross) in an 8-week period

If your employee does not fit with the above, they may not qualify for SMP and you can refuse. Instead, they may be able to get Maternity Allowance.

To officially refuse, you must provide your employee with the SMP1 form within 28 days of their request for SMP or the birth.

If you are unsure whether your employee is entitled to maternity leave and SMP, it may be helpful to seek the advice of an employment law expert. They will be able to look at your employees’ contracts and help you reach a decision.

If you would like more advice on providing parental leave for your staff, get in touch with our team today.

Amanda Hyam

Head of Dispute Resolution and Employment

I have specialised in Dispute Resolution, Civil Litigation and Employment law for more than 15 years. I understand how daunting the prospect of litigation can be and because of this I am always available to discuss concerns.