Maternity Rights, Leave & Pay

There are three levels of maternity leave:

• Ordinary Maternity Leave (OML): Since April 2003, all pregnant employees are entitled to OML - there is no qualifying period. The length of the leave is 26 weeks. The allowances payable are SMP or MA (see below) and the paid period now extends into part of the additional maternity leave period (see below).
• Compulsory leave: This is a period of two weeks immediately after giving birth during which the woman is not permitted to work. This is part of the ordinary maternity leave period, not additional to it.
• Additional Maternity Leave (AML): Begins from the end of the OML and is for a period of a further 26 weeks - there is no qualifying period of employment for AML. Part of AML is unpaid. However, some organisations have more generous contractual terms and pay a woman during all her AML.

The earliest date a woman can start her maternity leave is the beginning of the eleventh week before the baby is expected. She must provide her employer with details of the week the baby is expected and the start date of her maternity leave. The employer must respond to this notification within 28 days and state the date by which the woman is expected to have returned to work after she finishes her full maternity leave entitlement – usually the end of her AML unless she chooses to return at an earlier date.

Maternity pay
Mothers who qualify are essentially entitled to up to 39 weeks' SMP. To qualify, the employee must:

• work for an employer who is liable (or would be liable but for low earnings) to pay the employer’s share of Class 1 National Insurance contributions
• have average weekly earnings in the eight weeks up to and including the qualifying week at or above the lower earnings limit for the payment of National Insurance contributions
• have 26 weeks' continuous service with her employer assessed at the 15th week before the week the baby is due .

The first 6 weeks of SMP is paid at 90% of average weekly earnings and the remainder at the lower statutory level (currently £117.18 per week or 90% of the average weekly earnings if this is less than £117.18 per week). SMP rates are normally increased in April each year.

Women who do not qualify for SMP
These women may qualify for MA: this is based on their recent employment and earnings record and is a state benefit which is payable for 39 weeks. To qualify, a woman must:

• be employed but not qualify for SMP, or be self-employed, or recently employed
• have been employed or self-employed on at least 26 weeks of the 66 weeks ending with the week before the expected week of childbirth
• earn at least a specified amount per week on average in any 13 weeks in the test period (currently £30).

Paternity rights
Fathers currently enjoy a limited paid statutory right to paternity. The eligibility factors are:

• continuous employment for 26 weeks ending with the fifteenth week before the baby is due
• the man must be the baby’ s biological father or the partner/husband of the mother
• the man has (or expects to have) responsibility for the baby’s upbringing.

The entitlement to leave is based on a relationship with the child's mother, so paternity and adoption leave also apply to partnerships of the same sex. From 5 December 2005, unmarried ‘civil partners’ have had increased rights equivalent in many respects to those enjoyed by spouses. This includes entitlement to maternity, paternity and adoption leave and pay.

Paternity leave
The maximum duration of the statutory leave is two weeks. Paternity leave can start from:

• the date of the baby’s birth or any day of the week following the birth. If the baby is born earlier than expected, then the leave must be completed within the period from the actual date of birth up to 56 days after the first day of the expected week of birth
• within 56 days of the date of birth of the baby.

The employee has an obligation to inform the employer of the intention to take paternity leave by the end of the fifteenth week before the baby is expected. The employee must provide the following details:

• the start date of the leave to be taken
• the week the baby is expected
• the duration of leave to be taken.

Paternity pay
An employee must complete a self-certificate to be entitled to Statutory Paternity Pay (SPP). The rate of SPP is the same as SMP (see above). However, an employee whose earnings are below the lower earnings limit for National Insurance purposes does not qualify for SPP. Such employees may be entitled to other welfare benefits.

Rights during and after paternity leave
A male employee who qualifies for paternity leave is entitled to:

• return to the same job
• return to the same terms and conditions of employment
• not be subjected to a disadvantage, unfair treatment or dismissal.

Qualifying fathers are also entitled to unpaid parental leave and to request flexible working.


References

cipd.co.uk
acas.org.uk

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