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Maternity Overview

This fact sheet summarises the main maternity rights for women.

The following abbreviations are used in this fact sheet:

EWC         Expected Week of Childbirth - the week, starting on a Sunday, in which the employee’s doctor or midwife expects the mother to give birth.

SMP         Statutory maternity pay.

QW           Qualifying Week – the 15th week before the EWC.

MAT B1    A certificate issued by a doctor or midwife showing the expected date of the baby's birth.

The Rights

In general terms, all pregnant employees have the following statutory rights:

  • Paid time off to receive ante-natal care;
  • Up to 52 weeks’ maternity leave;
  • Protection against unfair treatment or dismissal; and
  • To be offered suitable alternative work before being suspended on maternity grounds and remuneration if suspended on maternity grounds.

In addition, some women are entitled to maternity pay, provided that they are an employee, have a certain level of earnings and have the required length of service.

The above rights currently do not extend to someone expecting a child via a surrogate.

A brief explanation of these rights is set out below. For further details, see Maternity Leave and Pay Factsheet FS11.02.

Time off for Ante-Natal Care

All pregnant employees (regardless of length of service) are entitled to take reasonable time off work with pay to attend ante-natal appointments made on the advice of a doctor, registered midwife or registered health visitor.  Ante-natal care may include relaxation and parent craft classes, as well as medical examinations. This right also applies to agency workers provided that they have passed the 12-week qualifying period with the hirer under the Agency Workers Regulations 2010.

Except in the case of the first appointment, employers can require the employee to produce a medical certificate from her doctor, midwife or health visitor stating that she is pregnant and an appointment card showing that the appointment has been made.

If an employer fails to comply with these rights, the employee may complain to an Employment Tribunal. 

Accompanying a pregnant woman to ante-natal care

Employees who have a "qualifying relationship" with a pregnant woman or her expected child are entitled to take unpaid time off during their working hours to accompany a woman to an antenatal appointment. See Maternity Leave and Pay Factsheet FS11.02.

Agency workers in a “qualifying relationship” are also entitled to accompany a pregnant woman to an appointment provided that they have passed the 12-week qualifying period with the hirer under the Agency Workers Regulations 2010.

The statutory right to time off is limited to no more than two appointments lasting no more than six and a half hours each.

Employees are protected from suffering a detriment or dismissal as a result of exercising this right.

Maternity Leave

Notification

To take advantage of up to 52 weeks’ maternity leave, a pregnant employee is required to notify her employer of her intention to take maternity leave by the end of the QW, unless this is not reasonably practicable.  She must tell her employer when her EWC is and when she intends her maternity leave to start. The employee can bring forward her maternity start date if she gives at least 28 days’ notice of the new date.

Maternity leave can start at any time after the beginning of the 11th week before the EWC, but will start automatically if the baby is born before the notified start date, or if the employee is absent due to a pregnancy-related illness in the four weeks prior to the EWC.

The employer must respond to the notification within 28 days, confirming the date on which her maternity leave will start and the date on which she is due to return to work if she takes the full 52 weeks’ entitlement.

Rights during Maternity Leave

For full information, please see Maternity Leave and Pay Factsheet FS11.02.

Compulsory Maternity Leave

All employees must by law take a minimum of two weeks of compulsory maternity leave immediately after the birth of their child (four weeks for factory workers).

Ordinary Maternity Leave

Ordinary maternity leave (OML) is the first 26 weeks of maternity leave. It is followed immediately by a period of up to 26 weeks’ additional maternity leave (AML). Slightly different rights apply to the employee during OML and AML and on their return to work, depending on whether they are returning from a period of OML or AML.

During OML, the employee’s contract of employment continues in force and she is entitled to receive all her contractual benefits, except for salary/remuneration.  This means, for example, that contractual annual leave entitlement will continue to accrue.  Other non-cash benefits in kind such as private medical insurance, life assurance, permanent health insurance, private use of a company car or laptop and gym membership should also continue.  An employee will therefore have a claim if, because of her absence on OML, her employer deprives her of any non-cash benefits in kind to which she would otherwise have been entitled. 

Pension contributions should continue to be made during OML. Employee contributions will be based on actual pay, while employer contributions will be based on the salary that the employee would have received had she not gone on maternity leave.

Salary will be replaced by SMP if the employee is eligible to receive it.

Additional Maternity Leave

During AML, the employee’s contract of employment continues in force and she is again entitled to receive all her contractual benefits, except for salary/remuneration. 

Salary will be replaced by SMP for the first 13 weeks of AML if the employee is eligible to receive it.  The remaining 13 weeks of AML are unpaid.

Pension contributions should continue to be made during the period when the employee is receiving SMP (if eligible) but not during any period of unpaid AML. 

Contact during Maternity Leave

The employer is entitled to maintain reasonable contact with the employee during her maternity leave.  This may be, for example, to discuss her plans for return to work or to update her on developments at work during her absence.  As a minimum, the employer should advise the employee of any internal job vacancies and permit her to apply.

Keeping in Touch Days

The law enables an employee on maternity leave to agree with her employer to work for up to 10 days during her maternity leave without bringing that period of leave to an end and without loss of a week’s SMP as a result of carrying out that work.  See Maternity Leave and Pay Factsheet FS11.02 for more details.

Returning to work after Maternity Leave

If the employee intends to take the full 52 weeks’ leave, she does not need to notify her employer of her intended date of return. However, if she wants to return to work earlier than this, she must give at least eight weeks’ notice of her return.

If the employee decides not to return to work at all after maternity leave, she must still give notice of termination of employment in accordance with the terms of her contract of employment (or one week’s statutory minimum notice if no contractual notice period has been specified). 

If the employee is returning from a period of OML only, she is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent. 

If she is returning after a period of OML and AML, she is again entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.  If, however, there is some reason why it is not reasonably practicable for her employer to take her back in her original job, she will be entitled to be offered suitable alternative work, of equivalent status and responsibility and on no less favourable terms and conditions.

Employees returning from maternity leave may make a flexible working request. See Flexible Working Overview FS9.01.

Supporting parents with sick or premature babies

Employees with babies who are born prematurely or who are unwell may need particular support. Acas has produced guidance for employers on how to deal with this which can be accessed following the link below:

     http://www.acas.org.uk/index.aspx?articleid=6049

Protection against unfair treatment or dismissal

An employer must not subject an employee to unfair treatment at work because she:

  • Is pregnant.
  • Has given birth.
  • Has taken, or sought to take, ordinary or additional maternity leave.
  • Has taken, or sought to take, any of the benefits of ordinary or additional maternity leave.
  • Has been suspended from work for health and safety reasons connected to her maternity.

This protection applies regardless of the employee’s length of service.

It is unlawful for an employer to dismiss an employee, or select her for redundancy in preference to other comparable employees, for reasons connected with:

  • Her pregnancy.
  • Childbirth.
  • Taking, or seeking to take, ordinary or additional maternity leave.
  • Taking, or seeking to take, any of the benefits of ordinary or additional maternity leave.
  • Maternity suspension on health and safety grounds.

Again, these rights apply regardless of the employee’s length of service.

Maternity suspension on health and safety grounds

Employers have a duty to take care of the health and safety of all employees. As part of this, they are required to carry out a risk assessment to assess the workplace risks to women who are pregnant, have recently given birth or are breastfeeding, where the work is of a kind which could involve a risk of harm or danger to their health and safety or the health and safety of their baby, and the risk arises from either processes, working conditions or physical, chemical or biological agents in the workplace. The employer should provide affected employees with information as to any risks identified in the risk assessment.  If the risk assessment reveals that the employee would be exposed to health hazards in carrying out her normal job duties, the employer must take such steps as are reasonably necessary to avoid those risks, such as altering the employee’s working conditions. 

If this would not remove the risk, the next step is for the employer to offer the employee suitable alternative work (if available) on a temporary basis on terms and conditions which are not substantially less favourable than her normal terms and conditions of employment. 

If it is not possible for the employer to alter the employee’s working conditions to remove the risks to her health and there is no suitable alternative work available to offer her on a temporary basis, the employer may suspend her from work on maternity grounds until such time as there are no longer any risks to her health.  This may be for the remainder of her pregnancy until the commencement of her maternity leave.  If an employee is suspended in these circumstances, her employment will continue during the period of the suspension and it does not in any way affect her statutory or contractual employment and maternity rights.  The employee will also be entitled to receive her normal wages or salary during the period of her suspension, unless she has unreasonably refused an offer of suitable alternative employment.

Statutory Maternity Pay (SMP)

To be eligible to receive SMP, an employee:

  • must have been continuously employed by her employer for at least 26 weeks ending with the  QW and still be employed during that week;
  • must have average weekly earnings in the eight weeks up to and including the QW at least equal to the lower earnings limit for the payment of National Insurance contributions. Please refer to our Statutory Rates and Limits table for the current rate);
  • must still be pregnant at the 11th week before the EWC (or have already given birth);
  • must give the employer proper notification of her pregnancy (as above); and
  • must provide a MAT B1 form.

SMP is paid for up to 39 weeks after commencement of maternity leave. The first six weeks of SMP are paid at 90% of the employee’s average weekly earnings for the period of eight weeks up to and including the QW. For the purpose of calculating average weekly earnings, shift allowances, overtime payments and commission are all included. 

The remaining 33 weeks (or less if the employee decides to return to work sooner), are paid at the Government’s set weekly rate or 90% of the woman’s average weekly earnings calculated over the period of eight weeks up to and including the QW, whichever is the lower. The current rate set by the Government can be found on our Statutory Rates and Limits table.

SMP is treated as earnings and is therefore subject to deductions of income tax and National Insurance contributions.

SMP is payable whether or not an employee intends to return to work for her employer after her maternity leave.

Should an employer fail to pay SMP, the employee may apply to HM Revenue & Customs for a formal decision.  Where HM Revenue & Customs gives a formal decision that SMP is payable, a subsequent failure to pay SMP within the time allowed is an offence and the employer can be fined up to £1,000 per offence.

Subject to certain exceptions, employers may recover 92% of the amount of SMP paid to an employee by making one or more deductions from their Class 1 National Insurance contributions. 

If an employee is not eligible for SMP, she may be entitled to Maternity Allowance, which can be claimed from Jobcentre Plus.

Shared Parental Leave

SPL gives eligible employees the right to take up to take up to 50 weeks' leave within the first year of their child’s life, provided that they or the child's mother has taken steps to bring their maternity leave to an end early.

There are eligibility requirements for SPL and a statutory notification process that needs to be followed. For further information on this please refer to:

Shared Parental Leave Policy

FS88- Shared Parental Leave and Pay factsheet

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.