Maternity leave – what expectant mothers are entitled to

Disputes over maternity leave pay
25th April 2018

There are specific employment rights which apply to women during pregnancy and childbirth, to ensure that they are not treated unfairly. These include the right not to face dismissal because of pregnancy or childbirth, and the right to return to work after maternity leave.

Expectant mothers must also be granted paid time off to attend antenatal appointments, and may be entitled to receive maternity pay once they go on leave.

Being dismissed on grounds of pregnancy or childbirth

All employees, regardless of how long they have worked for their employer, are entitled not to be dismissed simply because they are pregnant, or have given birth. In fact any such dismissal is automatically unfair.

Any other form of discrimination against a female employee for the sole reason of being pregnant or taking maternity leave is also unlawful. This might be:

  • Changing her contract without her consent (i.e. reducing working hours);
  • Giving unsuitable work;
  • Writing unfavourable staff reports; or
  • Treating time off for pregnancy as a disciplinary issue.

Right to maternity leave

Working mothers who are classed as ‘employees’ have the basic statutory right to a certain amount of maternity leave. However, those classed as ‘workers’ and the self-employed do not have a statutory right to take maternity leave. In addition to statutory entitlements, some individual employers may also offer their own maternity schemes.

Company schemes

The company you work for may have their own system which is more generous than the standard statutory scheme. Check your contract of employment to see if this is the case. Note that a company cannot offer you less than the statutory scheme.

Statutory Maternity Leave

All employed mothers are entitled to 52 weeks of Statutory Maternity Leave, up to 39 weeks of which can be paid. This 52 week period is divided up equally into 26 weeks of Ordinary Maternity Leave and 26 weeks of Additional Maternity Leave.

You are not required to take 52 weeks of maternity leave if you don't want to, but you do have to take 2 weeks off after giving birth. If you work in a factory, you will have to take 4 weeks off.

During maternity leave your contract of employment is considered to continue, even though you are not physically at work.

In order to ensure that you qualify for Statutory Maternity Leave it is essential that you give the required details to your employer at the right time. Before the 15th week before the baby is due, you must inform the employer of the pregnancy and tell them the expected week of the birth and when you intend to start taking maternity leave.

As long as this is done, all employees are entitled to statutory maternity leave irrespective of their standing in the company (how long you’ve been there, how much you get paid and how many hours you work).

maternity leave can be triggered by any instance of missing work because of a pregnancy-related illness

Your employer must respond to your request within 28 days, providing a confirmation of when you will start and end your maternity leave period.

The earliest a mother can choose to begin her maternity leave is the eleventh week before the expected week of childbirth, which is around 29 weeks into the pregnancy. Any date thereafter can be chosen for the maternity leave to commence – it is even possible to work until the date of birth.

The maternity leave can however be automatically triggered by any instance of missing work because of a pregnancy-related illness which occurs after the beginning of the fourth week before the expected week of childbirth. Naturally the same will happen if the baby is actually born before the day which was originally chosen to start the maternity leave.

Rights of a mother to return to work after a baby

Provided she has satisfied all the requirements for maternity leave, an employee returning after her 26 weeks of Ordinary Maternity Leave is entitled to return to the job in which she was employed before she left on maternity absence, and on terms and conditions no less favourable than those she would have been on if she had not been away.

The situation is slightly different for those who have extended their time through Additional Maternity leave. In this case the employer is not compelled to reinstate the employee in the same job if they can show that this was not reasonable to do (for example if the position is no longer in existence). However, the employer still must offer the employee alternative work which is no less favourable as those prior to the period of maternity leave.

Notice of your intention to return must be given to the employer. This is not absolutely necessary if you take the full 52 weeks, as this is what most employers will assume you intend to do. Nevertheless, it may be advisable to do so.

If intending to come back before the 52 weeks have passed, however, you are obliged to give your employer 8 weeks’ notice. If this is not done then they can insist that you do not return until 8 weeks have elapsed.

Right to maternity pay

In order to qualify for Statutory Maternity Pay (SMP), you need to satisfy the following conditions:

  • You must earn an average of at least £111 a week;
  • You must have been continuously employed by your employer for a minimum period of 26 weeks ending with the 15th week before the expected date of birth;
  • You must give evidence of your pregnancy to your employer; and
  • You must give appropriate notice to your employer.

If you can satisfy all these conditions then you will qualify for SMP at the higher rate (90% of your normal week’s pay) for six weeks. Thereafter you will be paid whichever is lower of the standard rate of £139.58 or 90% of your average gross weekly earnings for the remainder of the maternity pay period, which can be up to 33 weeks.

If you feel that your employer is treating you unfairly over your maternity leave and pay, talk to us to see how we could help.

Legal help for maternity disputes

Time off for antenatal care

A pregnant employee has the right not to be unreasonably refused paid time off work to attend antenatal care recommended by a doctor, midwife or health visitor.

The time off must be paid at the employee’s normal rate, and all pregnant employees are entitled to this, regardless of how long they have served the company.

It may however still be preferable to try to make your antenatal appointment outside of working hours to avoid disruption to your company.

From the second appointment the employer can demand to see evidence that the appointments are being attended; this is usually in the form of a medical certificate vouching for the pregnancy along with an appointment card.

How to avoid workplace discrimination in your business

Businesses must do all they can to prevent discrimination in the workplace and being up-to-date with equality law is essential.

April 2018 Learn more
Unfair dismissal laws

When an employer doesn’t have a good reason for their decision to dismiss someone, or doesn’t follow the appropriate procedures when doing so, the dismissed employee may be able to bring a claim for unfair dismissal.

April 2018 Learn more
How to raise a grievance at work

If you have a problem at work that has not been resolved through informal discussion, your next step should be to raise a formal grievance through your employer's grievance procedure. This means they must take steps to fix the issue.

April 2018 Learn more

Read more from the DAS Law blog

Employment disputes Don’t get in trouble with the law on April Fool’s Day

When does the line between hilarious and harsh get crossed and can a prank turn into legal proceedings?

March 2024
Employment disputes Top 10 Settlement Agreement tips for employers

The purpose of a Settlement Agreement is to bring an employment relationship to an end by mutual agreement. Here are our top 10 tips for moving people on with settlement agreements.

March 2024
Employment disputes Do employees get extra pay on a leap year day?

Every four years, many workers find themselves cramming an extra day of work into an already packed year. But are workers in the UK entitled to extra pay for this extra work?

February 2024
Employment disputes How Maternity, Adoption and Shared Parental Leave regulations are changing this year

In this Bitesized Edition, we look at the new Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations, set to come into force on 6 April 2024.

February 2024
Employment disputes 9 things employers need to know about apprenticeships

With National Apprenticeship Week here, we explain what employers need to consider regarding apprenticeship schemes and their legal obligations.

February 2024
Employment disputes How flexible working regulations are changing this year

Amendments to the current flexible working legislation will come into force this year. Any flexible working applications made on or after 6 April 2024 must be dealt with in accordance with the regulations.

January 2024
Employment disputes Holiday Pay Guidance from the Government – The Bitesized Edition

The Government has issued guidance on calculating holiday pay to simplify holiday entitlement for irregular hours and part-year workers.

January 2024
General advice , Employment disputes Be on your best behaviour at your work Christmas party

Charlotte Ellis. Legal Adviser at DAS Law, looks at the rules surrounding the office Christmas party.

December 2023
Employment disputes Don’t get a red card while watching the World Cup at work

If you are planning on watching World Cup matches at work there are a number of important things to consider.

August 2023
Employment disputes How employers can prevent harassment or bullying in the workplace

Employers can be liable for employees who have subjected other employees to harassment in the workplace if they have not taken reasonable steps to prevent harassment.

July 2023
Employment disputes How “purpose or reasonable effect” can affect workplace harassment cases

Harassment in the workplace has come under a spotlight in the last few years and employers have put their policies and practices under the spotlight to ensure they are doing all they can to eliminate it.

July 2023
Employment disputes Restrictive covenants in employment contracts – what the government is proposing

employees are departing who may have had access to trade secrets, strategic plans, financial plans and customer or client confidential information.

July 2023
Employment disputes The Sunset Clause Removal: retaining and discarding EU Law – The Bitesized Edition

Following Brexit, in September 2022 the government introduced a bill creating powers to revoke, amend, replace, restate or assimilate approximately 2,400 pieces of EU Law.

June 2023