Maternity and paternity

MATERNITY

Ordinary maternity leave

An employee is entitled to 26 weeks' ordinary maternity leave, irrespective of her length of service, or whether she is full-time or part-time.

To qualify for ordinary maternity leave, she must notify you by the end of the 15th week before the week in which the baby is due (or if that is not reasonably practicable, as soon as is reasonably practicable) of:

• her pregnancy;
• the expected week of childbirth;
• the date on which she intends to start ordinary maternity leave.

A pregnant employee can start ordinary maternity leave any time after the beginning of the 11th week before the week in which the baby is due.

If she is absent from work wholly or partly because of pregnancy, during the four weeks before the week in which the baby is due, the ordinary maternity leave period will start automatically, even if the employee intended it to start at a later date.

Additional maternity leave

She is also entitled to 26 weeks' additional maternity leave, irrespective of her length of service, or whether she is full-time or part-time.

Statutory maternity pay

Statutory maternity pay must be paid to any pregnant employee, provided that she:

• is an employed earner, ie works for someone who is liable to pay the employer's share of her Class 1 National Insurance Contributions;
• has produced medical evidence of the week in which the baby is due; and
• has given 28 days' notice of the date on which she wishes to start SMP.

She must also have 26 weeks' continuous service with you, up to and including the 15th week before the expected week of birth of the child, to qualify for SMP.

If an employee does not qualify for SMP, she may qualify for maternity allowance.

Statutory maternity pay (SMP) is payable for up to 39 weeks. For the first six weeks, SMP is paid at 90 % of the employee's normal weekly earnings. These will include any pay rises made up to the end of her maternity leave.

For the remaining 33 weeks, SMP is paid at the lower of £117.18 a week, or 90 % of the woman's average earnings.

SMP can now be calculated at one seventh of the weekly rate (ie daily) where this helps employers to align SMP payments with monthly (or any other) payment periods they use for wages.

You can recover 92 % of the amount of SMP paid by deducting that amount from your contributions payments to HM Revenue and Customs. If you are a small employer, you may recover 100 % of SMP paid plus an additional 4.5 % compensation. You qualify as a small employer if your NI contributions amount to not more than £45,000 a year.

To reclaim statutory maternity pay you need:

• a completed form MAT B1 from your employee; or
• a letter from her doctor or midwife.

This letter must show:

• the employee's name;
• when the baby is due;
• the date of the medical examination;
• the date of signing;
• the signature of the doctor or midwife;
• the doctor's stamp, or the midwife's PIN number.

Your employee's general rights during pregnancy and maternity leave

You are required to assess the health and safety risks posed to pregnant workers.

A pregnant employee is entitled to paid time off for ante-natal care, which may include parenting and relaxation classes.

If you dismiss an employee, whether full or part-time, for a reason connected with pregnancy (or maternity leave or parental leave), you will be liable for unfair dismissal as well as sex discrimination.

During the ordinary maternity leave period and, for mothers whose expected week of childbirth began on 5 October 2008, during additional maternity leave too, your employee is entitled to all of her normal terms and conditions of employment, except 'remuneration'. These include any non-cash contractual benefits such as a company car, home PC or gym membership, health benefits and any contractual entitlement to holiday above the statutory minimum.

During ordinary maternity leave you must keep her original job open for her. While on additional maternity leave, she has the right to come back to her original job or, if that is not reasonably practicable, to a suitable alternative job.

A pregnant employee who is off sick should be treated in the same way as any other sick employee. If her illness is pregnancy-related, you cannot take any unfavourable action against her during her pregnancy and maternity leave, on account of her illness or you leave yourself open to a claim for sex discrimination and unfair dismissal.

If a redundancy situation arises during an employee's ordinary maternity leave or additional maternity leave, you must consider whether it is reasonably practicable to continue to employ her in her existing job. This will involve considering whether the employee on maternity leave, or some other employee, should be selected for redundancy. If you decide to select the employee on maternity leave, you must offer her any suitable vacancy that is available, or pay redundancy pay, just as with the other employees affected.

Returning to work

Your employee does not have to give you any notice if she intends to return to work at the end of her maternity leave. If she intends to return before that, she should give you at least eight weeks' notice (previously 28 days) - and if she changes her mind and decides to come back earlier (or later), she must also give you eight weeks' notice of the new return date. If she fails to give adequate notice, you can postpone her return to give yourselves the requisite eight weeks' notice. You cannot postpone her return to a date later than the end of her ordinary or additional maternity leave, except with her agreement.

If an employee doesn't return on the specified date because she is sick, treat her in the same way as any other employee on sick leave, including paying her normal sick pay entitlement, whether contractual sick pay or Statutory Sick Pay.

If you want to dismiss her you must implement your full dismissal procedures. In assessing her sickness record, you must ignore any periods of sick leave for a pregnancy-related illness during her pregnancy and maternity leave.

"Keeping in touch" days and reasonable contact Mothers can agree with their employer that they will work, which can include training, for up to ten days during their statutory maternity leave. These 'keeping in touch' days neither bring the maternity leave to an end, nor extend it by the number of days worked. An employer is not obliged to offer keeping in touch days, nor the employee to accept them.

The employer is also entitled to have 'reasonable contact' with her during the mother's statutory leave - this will benefit the employer who wants to be able to contact the mother lawfully during her maternity leave to find out her intentions about returning to work.

Returning part-time

If she wants to return part-time you are obliged to give the request careful consideration. You must provide her with good business reasons if you refuse. You must be able to show that these reasons are objectively justified, in order to avoid liability for sex discrimination. The fact the job has not been done on a part-time basis before will not in itself justify refusing the employee's request.

PATERNITY

Fathers are entitled to one full week or two full weeks' paid paternity leave at or around the birth of the child, for the purpose of caring for the child or supporting the mother. Leave must be taken within 56 days of the birth. Paternity pay is £117.18 per week or 90% of average weekly earnings, whichever is less.

They must have at least 26 weeks' service with you by the 15th week before the expected week of childbirth, must give you notice at least 15 weeks before then, and must have average weekly earnings of more than £90 per week. They must be the biological father of the child or the husband or partner of the child's mother. They must also have, or expect to have, responsibility for bringing up the child.

If in doubt, take legal advice.