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Maternity Leave and employees’ rights: a guide

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When someone important leaves a small team for about a year, it would be amazing if it wasn’t a hit for the business.

But family is important to everyone, so if you are seen to be on top of and OK with maternity leave, you could see a boost to morale which will outweigh the cost of losing one of your team for a while.

If they are good, you stand a good chance of keeping them for longer by treating them well too.

Employment law protects the rights of both employers and employees concerning maternity leave. But it is complicated enough that you’ll need to read-up to get your head round it all. Sometimes it is not clear what the employees are entitled to, including what they legally need to do. To any small business owner this could present legal problems and headaches, as the impact of an employee going on maternity leave can be significant. Here are a number of things every employer needs to know about UK maternity leave.

What the Law Says

Pregnant employees are entitled to paid time off work before and after the birth. They also have a legally protected right to return to work subject to certain very limited exceptions, and some enhanced rights over other employees.

The main rights for mums-to-be in England, Wales and Scotland come from three laws, and are:

  1. The right for women to take time off work for antenatal care, as well as the right not to be unfairly dismissed, the right to maternity leave and health and safety provisions;
  2. Statutory entitlements to leave and pay;
  3. The right to be treated no less favourably while pregnant or on maternity leave.

As well as this, under the current legislation, employers have a responsibility to treat the pregnant employee fairly, and in some situations more favourably, during their pregnancy and on maternity leave. This includes ensuring they are given the same pay rise as their colleagues or considered for possible promotion if a more senior role opens and continuing the provision of all their normal ‘benefits’ (except pay).

It’s worth noting that the Children and Families Act 2014 will also see the introduction of further rights for parents and carers in 2015, including providing partners (who will have parental responsibility) with the right to attend two ante-natal classes and to share parental leave.

Maternity Pay

Your employee will usually be entitled to receive ‘Statutory Maternity Pay’ (SMP) whilst on maternity leave for a period of 39 weeks. To qualify for SMP she must:

  • Be earning over £109 per week (as at Oct 2013)
  • Have given the correct notice to you
  • Have provided a MATB1 form, or medical confirmation of the pregnancy
  • Have worked for you continuously for 26 weeks, up to the 15th week before the expected week of birth

If your employee is eligible for SMP, for the first 6 weeks she is entitled to receive 90 per cent of her average weekly earnings. For the next 33 weeks off she is paid whichever is the lower rate of either 90 per cent of her earnings or SMP, which is currently £138.18 per week (April 2014). This is the full extent of your liability to pay her, even if the employee takes the full 52 weeks as maternity leave. All this should be included in the letter you send to your pregnant employee confirming their entitlements.

The good news is that you should be able to reclaim 92 per cent of employees’ Statutory Maternity (SMP), Paternity and Adoption Pay – it gets automatically deducted from the amount you pay HMRC as part of your payroll. And smaller employers can claim even more – they can actually deduct 103 per cent of the SMP if your business qualifies for Small Employers’ Relief.

If your employee isn’t eligible for SMP, then you only need to place her on unpaid maternity leave until the date she returns to work, but she may be entitled to claim Maternity Allowance.

Further tips

It’s a good idea to:

Have regular conversations with your employee

It’s healthy to have conversations regularly with the expectant mother before and after the birth. Show an interest and you will learn about her plans, but be careful how this can come across and only discuss this when it’s appropriate to or if the employee approaches you.

Do regular risk assessments

It’s best to do a new maternity risk assessment every 8 weeks for the expectant mother, starting with your first meeting.

Keep written records

It’s important for continuity for managers to keep a log of conversations or correspondence they have had with the employee during pregnancy and whilst on maternity leave, in the event that they advise that they have not received some element of communication.

Kirsty Senior is co-founder and Director of citrusHR

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