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Top 5 questions about maternity leave

It’s that time of year again when we all show our gratitude for the things that our mothers do for us. Becoming a mother can be a scary thing in many ways, one of which is concerns about what happens with their employment? It is important for any expectant mother to be to always be aware of their rights (and the requirements to qualify for those rights) during and throughout their maternity period.

To mark Mother’s Day, we thought it would be helpful to give some guidance on 5 frequently asked questions regarding maternity rights, pay and benefits.

1. Before Maternity Leave am I able to take leave to attend antenatal appointments?

Yes, an employer can not refuse to allow a pregnant employee to take time off work for antenatal appointments. This time must also be paid.

2. Will I be entitled to statutory maternity pay?

In order to be entitled to statutory maternity pay you must meet the following criteria:

  1. Be employed in earner’s employment with an employer continuously for at least 26 weeks ending with the week immediately before the 14th week prior to the expected week of the childbirth born.
  2. Have an average weekly earning for the last 8 weeks of the 26 week period of no less than the lower earnings limit in force at the end of that week. At present this is £118.
  3. Have become pregnant and have reached or given birth before the start of the 11th week before the week of expected child birth.
  4. Have provided the necessary notice to your employer as to when you expect their liability to pay you SMP to start.
  5. Be off work

Once you are entitled to receive SMP you remain entitled to receive it from the employer throughout the period of entitlement (the statutory maternity pay period is 39 weeks) even if you do not remain employed. The position alters if you become employed by a different employer.

You should check if you can be classed as an ‘employee’ for SMP purposes even if you do not have a contract of service as there is a broader definition which generally seeks to entitle anyone paying class 1 national insurance contributions to SMP.

3. What statutory maternity leave will I be entitled to?

In total an employee will be entitled to up to 52 weeks of statutory maternity leave. An employee is entitled to this irrespective of their length of service or hours of work.

There are 3 types of maternity leave that make up this 52 week entitlement. These are Ordinary Maternity Leave (OML), Additional Maternity Leave (AML)  and Compulsory Maternity Leave (CML).

1.Compulsory maternity leave

CML makes up part of the OML leave allowance. An employer must not permit a person who is entitled to OML to work for the first 2 weeks from the day when the child is born. The employer commits an offence if this is breached and may be liable for a fine.

2. Ordinary maternity leave

OML can commence from the eleventh week prior to when the child is due (or earlier if the child is born before this time). It can be for a period up to 26 weeks or until the end of compulsory maternity leave.

3. Additional maternity leave

AML is the period from the 27th week up to 52 weeks.

4. Will I be able to return to my same job after maternity leave?

Yes, if you have taken ordinary maternity leave you have this right to automatically return to your previous job unless the job is no longer available. Where you have taken additional maternity leave you have the right unless it is not reasonable practicable for you to be allow to do so. However, in cases relating to additional maternity leave, even if a return to your old job is not practicable, you should be offered an alternative which is on no less favourable terms when taking into account matters such as salary, pension and seniority.

If you are denied the right to return to work after maternity leave then you will be treated as dismissed. This will potentially be treated as an automatically unfair dismissal and could give rise to claim against your employer depending upon the specific circumstances.

5. Can I carry out some work while I am on maternity leave?

Yes, an employee is permitted to work up to 10 ‘keeping in touch days’ without triggering the end of their maternity leave. These days can’t be taken within the compulsory maternity leave period. Whilst legislation is technically silent on pay for a KIT day, given that they are non-compulsory for staff members, and it is generally in both parties interests for them to undertake these in readiness for their return, it is likely that pay will be on standard terms. In any event, the national minimum wage would require to be complied with.  An employee you should suffer no detriment if KIT days are not utilised.

If you require any advice regarding employment issues that you are facing please contact us on 0117 904 6000 and ask to speak with our employment team.

Posted on Mar 23rd, 2020 by Lyons Davidson

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