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.

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