Your rights in relation to maternity law
Am I eligible to receive maternaty leave?
- Paid time off for antenatal leave. This can include relaxation and parent craft classes
- Suspension from work on full pay if there is an unavoidable health and safety risk and an alternative job cannot be found
- 26 weeks' ordinary maternity leave (OML) during which all the normal terms and conditions of your contract apply, apart from salary
- The right not to suffer unfair treatment, be dismissed or selected for redundancy on grounds related to your pregnancy or maternity leave
- Free dental care and NHS prescriptions for the length of your pregnancy and up to 12 months after the birth
- The right to return to work after maternity leave ends.
PROTECTING YOUR PREGNANT HEALTH
Once an employer receives written notification of your pregnancy, they must carry out a health and safety risk assessment. You are entitled to see a copy of the report.
As well as hazards such as exposure to certain chemicals, risks include lifting heavy loads, standing for long periods and jobs, which involve a lot of travel.
If the risk cannot be avoided, your employer must offer you a suitable alternative job or suspend you from work on full pay for the duration of your pregnancy.
If you work nights and have a medical certificate that states it could affect the health of you or your baby, your employer must offer you suitable daytime work or suspend you on full pay.
If a pregnancy-related illness causes you to be absent from work in the last four weeks of pregnancy, maternity leave will start automatically. Before then, time off would be taken as sick leave.
There are two periods of maternity leave:
- ordinary maternity leave (OML)
- additional maternity leave (AML).
During the whole of your maternity leave, your statutory holiday entitlement accrues.
For your own health and safety, you are not allowed to return to work for two weeks after the birth of your child, increasing to four weeks if you work in a factory.
ORDINARY MATERNITY LEAVE (OML)
All pregnant employees are entitled to 26 weeks' ordinary maternity leave. All terms and conditions of your contract, apart from salary, apply during this time - including perks such as health club membership or use of a mobile phone.
You are entitled to return to the same job on the same terms as before leave started. You are also entitled to benefit from any other improvements in terms of pay, holiday etc. That have been introduced.
ADDITIONAL MATERNITY LEAVE (AML)
Your contract continues to run during AML but only rights such as notice, redundancy and those relating to the grievance and disciplinary process continue.
If you have worked for your current employer for 26 weeks or more, you are also entitled to take a further 26 weeks of unpaid additional maternity leave. AML runs from the end of OML. This means mums-to-be can take up to a year off work after the birth of their baby.
To see if you qualify, compare your length of service against the expected week of childbirth on your maternity certificate MAT B1. If you have completed 26 weeks' service by the 15th week before your baby is due, you can take AML.
Because the 15th week before the expected week of childbirth is around week 26 of pregnancy, so long as you worked for your current employer when you conceived, you should qualify for AML and the higher rate statutory maternity pay (see below).
RETURNING TO WORK AFTER AML
Unlike ordinary maternity leave, time taken off as AML does not count for the purposes of assessing seniority, pension rights or other length of service payments.
You are entitled to return to the same job on the same terms as before leave started. You are also entitled to benefit from any other improvements in terms of pay, holiday etc. that have been introduced.
If it is not reasonably practical to offer you the same job, your employer is entitled to offer a suitable alternative position on terms that are no worse than your old job. If you refuse to accept the alternative position, you will have, in effect, resigned. If you feel the alternative is unsuitable, you can bring a complaint of unfair dismissal to an employment tribunal.
Special rules apply if you work for a small company which employs less than six people. You still have the right to take AML, but if your employer can show it is not possible to either give you your job back or offer you a similar role, you can't automatically claim unfair dismissal.
During ordinary maternity leave, most pregnant employees are entitled to either statutory maternity pay or maternity allowance. The amount you are entitled to depends on how much you earn and how long you have worked for your current employer.
STATUTORY MATERNITY PAY (SMP)
- SMP is paid by your employer for up to 39 weeks, depending on whether you decide to return early from maternity leave
- It is paid in the same way as your salary would normally be, i.e. weekly or monthly
- For the first six weeks your employer pays 90 per cent of your average earnings
- For the remaining 33 weeks, you will receive the standard rate of £123.06 per week
- If you earn less than £123.06 per week, you will receive 90 per cent of your average earnings for the 33 weeks.
DO YOU QUALIFY FOR SMP?
To qualify for SMP:
- you must have worked for your employer for 26 weeks by the 15th week before the expected week of childbirth
- you must earn at least £84 a week
- you must give your employer at least four weeks' notice of the date you intend to start maternity leave.
It is up to your employer to decide whether you qualify for SMP. If you don't, your employer must give you form SMP1 stating why you don't qualify.
REASONS WHY YOU MAY NOT QUALIFY FOR SMP
- You work on a freelance basis (i.e. are self-employed)
- You haven't worked at the company for long enough
- You don't earn the minimum £84 per week
- You haven't given 28 days' notice of when you intend to start maternity leave
- You haven't given medical evidence of your pregnancy within the time allowed - your company cannot pay SMP until it receives your maternity certificate MAT B1.
If you disagree with your employer's decision, you can ask for a formal decision from the Inland Revenue.
If you don't qualify for SMP, you may be entitled to maternity allowance, which you need to claim from your local social security/Jobcentre Plus office.
MATERNITY ALLOWANCE (MA)
For women who don't qualify for SMP, maternity allowance is a weekly benefit paid by the Department for Work and Pensions (DWP) or JobCentre Plus. MA can be paid direct into your bank or building society account.
- MA is paid for up to 26 weeks
- The standard weekly rate for MA is £123.06
- If you earn less than £123.06 per week, you will receive 90 per cent of your average earnings.
DO YOU QUALIFY FOR MA?
To qualify for MA, you must have worked for your employer or been self-employed for at least 26 weeks out of the test period of 66 weeks up to your due date. You must also have earned at least £30 a week in a 13-week period within this time. If you earn less than £30 a week, you won't qualify for MA.
If you don't qualify for MA, you may be entitled to claim Incapacity Benefit. For more details about this benefit, contact your local Jobcentre Plus office.
To claim MA, you will need to send the following information to your social security office.
- Completed MA1 claim form
- Medical evidence of when your baby is due - e.g. MAT B1 certificate. This medical evidence must be signed no earlier than the 20 weeks before your due date
- Payslips for the 13-week period you have chosen out of the 66-week test period.
You can claim MA when you reach week 27 of pregnancy. Government advice is to send in your claim as soon as you can, even if you don't yet have all the information listed above.
AFTER THE BIRTH
After you have worked for a company for one year, you will be entitled to 13 weeks' unpaid parental leave to be taken before your child's fifth birthday. This leave is on top of your usual holiday entitlement.
COPING WITH THE UNEXPECTED
In addition to parental leave, you have the right to take time off work to deal with family emergencies, no matter how long you've worked for a company.
Parents of disabled children are entitled to 18 weeks' unpaid leave to be taken before their child's 18th birthday.
You are entitled to this leave for each child under five born after 15 December 1999 (or under 18 for disabled children).
Parental leave is time off to look after your child or make arrangements for their welfare. You can use it simply to spend more time with your children whilst they are young.
HOW TO CLAIM
The terms that apply to taking parental leave can be agreed on an individual basis between yourself and your employer. If there is no agreement in place, the 'fallback scheme' comes into force.
THE FALLBACK SCHEME
- Leave must be taken in blocks of one week. Parents of disabled children may take leave in multiples of one day
- You can only take four weeks' parental leave each year per child
- You must give your employer 21 days' notice
- Your employer can postpone leave for up to six months if it would disrupt business.
If a redundancy situation arises whilst you are on maternity leave, you are entitled to be considered for any similar, alternative positions that are available.
Any new contract must take effect immediately, so continuity of employment is not affected and the terms and conditions - including place of work, must not be substantially less favorable than your original position.
If your employer does not comply with these rules, you are entitled to bring a claim of unfair dismissal at an employment tribunal.
All parents of children under six, or disabled children under 18, have the right to apply for flexible work and your employer has a duty to consider your request seriously.
Flexible working includes changing your hours of work, switching to part-time hours, job-sharing and working from home.
You can only apply for flexible working once you have worked for a company for 26 weeks, and you can only make one application in a twelve-month period. Any changes made will be permanent, so you need to consider the financial implications of, say, moving to part-time hours.
To request flexible working there are a number of things you need to do:
- You need to put your request in writing
- Within 28 days of receiving the request, your employer must arrange a meeting to discuss your application. You can bring another work colleague to the meeting
- After the meeting, your employer must write to you within 14 days to either agree the new work pattern with a start date or provide clear business grounds why your application has been rejected
- The time periods given above can be extended by mutual agreement. Your employer must record any extensions in writing and give you a copy of the new dates
- You have 14 days after the decision to make an appeal, but by law your employer has the right to turn you down. As such, only a few people will have grounds to take their claim to the Advisory, Conciliation and Arbitration Service (ACAS).
Whilst every effort is made to ensure that the legal information contained on “YouandYourRights” is accurate, it does not constitute legal advice tailored to your individual circumstances. If you act on it, you acknowledge that you do so at your own risk. Neither the Proprietor nor Dean Dunham can assume responsibility and do not accept liability for any damage or loss which may arise as a result of your reliance upon it.