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URN No: 08/816/A
|This guidance has been produced, following changes to legislation, to reflect maternity leave and pay entitlements and responsibilities as they apply both to employers and to pregnant employees and employees who are new mothers whose baby is due on or after 1 April 2007. Where an employee’s baby is due before then, the previous legislation and guidance will continue to apply (see Maternity rights: a guide for employers and employees - Babies due on or after 6 April 2003 for details.) This means that an employee whose expected week of childbirth begins, for example, on 25th March 2007, will be covered by the old legislation, not the new laws described in this guidance, regardless of when the baby is actually born. |
This is intended to provide a general overview of the law. More detailed guidance on particular aspects of the legislation is available from other sources. Contact details and links where appropriate are provided throughout this guidance.
This guidance describes –the rights of both pregnant employees and their employers and their responsibilities towards each other following the amendments to legislation made by the Work and Families Act 2006 and consequent regulations. It gives general guidance only. It has no legal force and cannot cover every point and situation. It describes the position which applies in England, Wales and Scotland. In Northern Ireland corresponding legislation applies.
The rates of Statutory Maternity Pay and Maternity Allowance are subject to revision by the Department for Work and Pensions each April. This means that the rate quoted in official guidance which is printed from the internet can become out of date. The internet guidance will be updated as and when the rates change; alternatively your local Jobcentre Plus office can advise you of the current rates.
While this guidance describes statutory maternity rights and obligations, women who are pregnant or who have recently given birth may also take advantage of other statutory rights which apply to all employees. These are mentioned in the text where relevant.
Employees who are fathers of new babies, or who are the partner of the mother, may also have a right to paternity leave with pay, and both parents may be entitled to take parental leave and time off for dependants. Employees who are parents of young children or disabled children under the age of 18 also have the right to request flexible working. These rights are summarised in the section on Maternity Leave.
The Department of Trade and Industry has responsibility for employment legislation, while the Department for Work and Pensions has responsibility for Statutory Maternity Pay and Maternity Allowance. Her Majesty’s Revenue and Customs has responsibility for employers’ administration of Statutory Maternity Pay, and the Women and Equality Unit in the Department for Communities and Local Government has responsibility for sex discrimination legislation. Direct links to detailed guidance provided by these Departments is provided where appropriate.
provide a summary of the rights and responsibilities of both employers and employees and a timeline of key actions;
All pregnant employees are entitled to paid time off for antenatal care
All pregnant employees are entitled to 52 weeks’ maternity leave (26 weeks’ Ordinary Maternity Leave and 26 weeks’ Additional Maternity Leave)
Pregnant employees who meet qualifying conditions based on their length of service and average earnings are entitled to up to 39 weeks’ Statutory Maternity Pay (SMP), which is paid by their employers and mostly or completely refunded by the Government
Women who are not entitled to SMP but meet qualifying conditions based on their recent employment and earnings may claim up to 39 weeks’ Maternity Allowance, paid direct by Jobcentre Plus
Employers may make reasonable contact with a woman on maternity leave for a number of reasons, such as to discuss arrangements for her return to work
Employees may undertake up to ten ‘Keeping in Touch Days’ during their maternity leave – allowing work under their contract of employment – by agreement with the employer
Employees who wish to return to work either earlier or later than agreed with the employer should provide eight weeks’ notice, unless the employer agrees to less notice being given
Employees have a right to return to the same job after maternity leave. There may be some exceptions to this if the employee takes more than 26 weeks’ maternity leave and if it is not reasonably practicable for the employer to hold her job open, but she must still be offered a job that is suitable for her and the terms and conditions must be no less favourable.
Pregnant employees and those on maternity leave are protected under sex discrimination legislation which outlaws unfair treatment, including dismissal, on grounds of their sex, pregnancy or maternity leave.
Employers are by law required to protect the health and safety of employees who are pregnant, have recently given birth, or who are breast-feeding
Further details on all of the above are provided in later sections of this guidance
The statutory maternity rights described in this guidance form a minimum standard of protection established by Parliament. Women and their employers, or their representatives, including Trade Unions, remain free to negotiate and agree more favourable arrangements on a voluntary or contractual basis should they wish to do so.
The Government welcomes and encourages this, where it accords with the priorities, needs and circumstances of the parties concerned. An employee cannot be bound by an agreement which offers maternity arrangements that are less favourable than her statutory rights.
Most of the rights and responsibilities, apart from the right to Maternity Allowance, described in this guidance apply only to employees and not to the self-employed or to the unemployed (see more information on employment status).
As a general rule, the following principles apply:
All pregnant employees are entitled to paid time off to attend antenatal appointments.
Time off for antenatal care should be paid at the employee’s normal rate of pay.
Antenatal care may include relaxation and parentcraft classes (on the advice of a healthcare professional), as well as medical examinations related to the pregnancy,
The entitlement to paid time off for antenatal appointments applies regardless of the employee’s length of service.
All pregnant employees are entitled to time off to keep appointments for antenatal care made on the advice of a registered medical practitioner, registered midwife or registered health visitor.
Antenatal care is not restricted to medical examinations. It could, for example, include relaxation classes and parentcraft classes as long as these are advised by a registered medical practitioner, registered midwife or registered health visitor.
The employer is entitled to ask for evidence of antenatal appointments, except in the case of the very first appointment.
With the exception of the first antenatal appointment the employee must show her employer on request:
The employee should be paid at her normal hourly rate of pay by her employer during the period of time off for antenatal care. This rate is calculated by dividing the amount of a week’s pay by the number of the employee’s normal working hours in a week. The normal working hours will usually be clear from the agreed terms and conditions of employment, or from the employee’s written statement of main employment particulars.
If working hours vary from week to week, they should be averaged over the previous 12 complete working weeks. If the employee has yet to complete 12 weeks’ service, the average should be estimated in the light of what could be reasonably expected from the agreed terms and conditions of employment and from the work pattern of any fellow employees in comparable jobs. Overtime is counted only if it is required and part of the normal working pattern.
For further guidance on what is meant by a week’s pay please see “Continuous Employment and a Week’s Pay”.
It is unlawful for an employer to dismiss an employee, to select her for redundancy in preference to other comparable employees or subject her to less favourable treatment, solely or mainly because she has sought to assert her statutory right to time off for antenatal care.
It does not matter for these purposes whether or not the employee does actually have the right and whether or not it has actually been infringed, as long as she acts in good faith in seeking to assert it. In addition, dismissal or selection for redundancy in these circumstances is likely to be unlawful under the provisions which protect women against dismissal on grounds of pregnancy or childbirth.
An employee who has been unreasonably refused time off for antenatal care or denied her normal rate of pay during such time off should raise a grievance with her employer. If the dispute is not resolved then she can complain to an employment tribunal.
An employee who has been dismissed on the above grounds should appeal against the dismissal as part of the requirement under the Statutory Dispute Resolution Procedures. Failure by employers or employees to use these statutory procedures could result in an increase or reduction of any compensation awarded. The Acas Code of Practice on disciplinary and grievance procedures sets out the statutory dispute resolution procedures that should be followed. Employers and employees may also find the general Acas advice on dispute resolution helpful.
Fathers do not have a legal right to time off to accompany their partners to antenatal appointments, as this applies only to pregnant employees. However, many employers do allow their employees time off work – paid or unpaid – in order to attend antenatal appointments.
The Government encourages this wherever it is practicable for both employer and employee. Guidance for employers, including case studies showing how some businesses manage this - see Fathers-to-be and time off for antenatal appointments.
It is sex discrimination to treat a female worker or job applicant less favourably for a reason related to her pregnancy or maternity leave.
It is sex discrimination to dismiss a female worker for a reason connected with her pregnancy or maternity leave.
Such discrimination cannot be justified whether on grounds of cost, disruption to the business, or for any other reason.
It is also unlawful under the Employment Rights Act 1996 to treat a woman unfairly, dismiss her or select her for redundancy for reasons relating to her pregnancy or maternity leave.
This protection applies regardless of the employee’s length of service and applies as soon as the employer knows that the employee is pregnant.
Further detailed guidance on sex discrimination and how it applies to pregnant women and women on maternity leave and their employers is available from the Women and Equality Unit at the Department for Communities and Local Government.