Maternity Leave is split into two types, Ordinary and Additional.
Ordinary Maternity Leave lasts for 26 weeks and all Employees are eligible for this regardless of their length of service with their employer.
Workers and Freelancers aren’t generally entitled to Maternity Leave but may be entitled to some form of Maternity Pay – see our Maternity Pay chart link below. We have updated our information with details of the ability to ‘swap’ some of your Maternity Pay period with your spouse/partner/father of your child from 3rd April 2011 – see details below.
See our Guide to Ante-natal appointments – from 1st October 2011 certain ‘agency workers’ will be entitled to paid time off for these appointments (as Employees already are).
Who qualifies for ordinary maternity leave?
To qualify for maternity leave, a woman must tell her employer by the end of the 15th week before the expected week of childbirth (EWC):
- That she is pregnant
- The expected week of childbirth should be, by means of a medical certificate MatB1
- The date she intends to start maternity leave. This can normally be any date as long it is not earlier than the beginning of the 11th week before the EWC. You can change your mind about when you want to start leave providing you give your employer 28 days notice.
- If you are sick with a pregnancy related illness during the 4 weeks before your EWC your ‘ordinary’ maternity leave will start automatically.
What rights does a woman have while on ordinary maternity leave?
- During the 26 weeks maternity leave you are entitled to benefit from all your normal terms and conditions of employment, except for salary/pay (including any overtime, allowances, other regular payments etc.), and this period counts towards your continuous service.
- You should continue to receive your normal benefits (e.g. Accruing holiday entitlement and benefits such as life insurance, permanent health insurance and medical cover, and any form of vouchers you receive). Please note that Company Cars and Car allowances are more complicated so we haven’t covered them here – please contact us if you have a specific query related to this.
- The minimum period of maternity leave you must take following the birth of your child is 2 weeks (or 4 weeks if you work in a factory).
- If you wish to return to work earlier than planned, before the end of your ordinary maternity leave (or during your additional maternity leave – see below) you need to give your employer 8 weeks notice of your new return date.
- At the end of ordinary maternity leave, you have the right to return to your original job on the same terms and conditions. If a redundancy situation arises while you are away, you must be offered a suitable alternative vacancy if one is available (see our Guide to Redundancy and SRP). If the employer cannot offer you suitable alternative work, you may be entitled to redundancy pay. For more information about redundancy during maternity see our updated details below.
Additional Maternity Leave
All Employees, regardless of their length of service are now entitled to an additional 26 weeks’ maternity leave. Additional maternity leave starts immediately after ordinary maternity leave and continues for a further 26 weeks.
This additional leave means you can be away from your job on maternity leave for 52 weeks in total (but you do not need to take this Additional Maternity Leave).
Additional maternity leave is usually unpaid (after the first 13 weeks) unless your employer gives you contractual rights to pay during this whole period.
During this period your contract of employment continues (unless you are on a Fixed Term contract that expires) but with limited terms and conditions -
- You are not entitled to normal salary/pay/allowances (unless your contract says differently).
- The notice period you or your employer needs to give, to end your employment, must still be adhered to.
- Your employer must adhere to agreed redundancy payments and access to the disciplinary and grievance procedure.
- You must adhere to your obligations to the disclosure of confidential information and working for another employer.
- Additional maternity leave does count toward your continuous employment with regards to statutory employment rights, but not necessarily towards continuous employment with regard to your contractual rights.
Since October 2008, you are entitled to your normal full benefit package throughout Additional Maternity Leave as well (including holiday entitlement but excluding pay and pensions). This includes receiving any entitlement to life insurance, permanent health insurance and medical cover, any form of vouchers you receive.
When an employer writes to you setting out your return date they will assume that you will take your whole 52 weeks maternity leave entitlement (Ordinary and Additional). If you wish to change your return date you must give your employer 8 weeks notice of your return to work date.
What rights do you have at the end of additional maternity leave?
- You are entitled to return to your original job or, if this is not reasonably practicable, to a suitable alternative job. If your employer cannot offer you suitable alternative work, you may be entitled to redundancy pay.
- You can also take 4 weeks of Parental Leave at the end of your maternity leave, if you want more time off, without affecting your return to work rights.
- If you decide not to return to work at all you must give your normal ‘contractual’ notice to resign.
Maternity Pay
Click here for a glanceable chart of Maternity Pay options
- Effective from 3rd April 2011, if you do not take the whole of the 39 weeks Maternity Pay you are eligible for, your spouse/partner/the father of your child may be able to take the remaining entitlement you have not taken, as Additional Paternity Leave – see our updated advice about Paternity Leave here.
- If you are employed on a Fixed Term (Employee) or Casual Contract (Worker) when pregnant you are likely to be entitled to some form of Maternity Pay (if you pay Class 1 National Insurance contributions). If your contract ends during your ordinary maternity pay period you will continue to receive SMP or Maternity Allowance for its total duration, even if your contract ends before this.
- Freelancers are usually not entitled to Statutory Maternity Pay (or adoption pay, paternity leave, parental leave) as this is only available to Employees and Workers (ie those paid via PAYE and pay Class 1 National Insurance contributions). Freelancers who work under a contract for service and invoice for payment are not eligible. You may however be eligible for State Maternity Allowance (see the above chart).
- There are no age restrictions to receiving statutory maternity pay or maternity allowance.
Other information
From 1st April 2007 “Keeping In Touch” days have been introduced. During either your Ordinary or Additional Maternity leave, Employees can now do up to 10 days work for your Employer, as long as both parties agree to the work being done (and what work will be done / how much you will be paid for the work). ‘Work’ could include anything relevant, e.g. training, attending conferences/meetings. These ‘Keeping in Touch’ days cannot be taken in the first 2 weeks after the baby is born.
Information About Pensions
During paid maternity leave (39 weeks if you are receiving Statutory Maternity Pay; longer if you are receiving Occupational Maternity Pay that lasts more than 39 weeks), if you are a member of an Occupational Pension scheme, then your paid maternity leave is defined as pensionable service. This means that both employees and employers continue to make contributions to your pension scheme (your contributions are based on the actual pay you are receiving while on maternity leave; you may be given the opportunity by your Employer to top up your contributions to the normal level, so your pension fund does not suffer).
Holiday Entitlement Through Maternity Leave
It is generally understood that employees cannot take holiday and be on maternity leave at the same time. Therefore you must take your holiday entitlement before you start maternity leave or at the end. For details on bank holidays that occur during statutory maternity leave see our Working Time Directive page.
Redundancy During Maternity Leave
There can be a lot of confusion about what should happen if there is a redundancy situation whilst you are on maternity leave.
The Law (Maternity and Parental Leave regulations) says that:
“If it is not practicable by reason of redundancy for an Employer to continue to employ a woman on maternity leave, the Employee is entitled to be offered (not just invited to apply for) a suitable available vacancy with her Employer where there is one available.”
This basically gives the woman priority over other Employees who are at risk of redundancy, even if they are better qualified for the job. But this right to a vacancy depends on 2 conditions (from the regulations above):
- That the work to be done must be suitable for the woman and appropriate for her to do, and
- That the terms and conditions of the new job, including the capacity and place in which she is to be employed, must not be “substantially less favourable”
It is also for the Employer to decide if the job is suitable and they should provide written evidence of why the role is suitable or not.
Additionally -
- If an Employer breaches this regulation and dismisses an Employee on maternity leave then it will automatically be an unfair dismissal.
- If there is no suitable alternative vacancy a redundancy would be fair if all other redundancy procedures were followed (again, see our Guide to Redundancy and SRP for more details).
Recruitment During Pregnancy
An Employer cannot reject a recruitment candidate for a job (of any duration) because she is pregnant and so could not work for the whole duration of the job (because she would be starting maternity leave). This is unlawful discrimination.
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Workline is supported by Employment Lawyers Goodman Derrick LLP. Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
