04 Jul 2018
Maternity leave is an employee right, regardless of how long they've been with your business. Your employees might not be eligible for Statutory Maternity Pay (SMP), but they must take maternity leave.
A pregnant employee must inform you that they intend to take maternity leave. They need to do this by the end of the 15th week before their child is due. You can request this in writing. If you do, your employee must supply written notice by the same deadline. You cannot, under any circumstances, dismiss or discriminate against staff on the grounds of pregnancy. To do so is illegal and could escalate to an employment tribunal. Employees have the right to change the start date of their maternity leave, but if they do this, they must give notice within 28 days of the intended leave date.
How Long is Maternity Leave?
Legally, your employees must take at least two weeks of maternity leave following the birth of their child. There are exceptions to this rule, though. For example, if your employee works in a factory, then they should take at least four weeks' leave. The employee decides how long they're off for beyond the minimum period. However, the maternity leave maximum is usually 52 weeks. Maternity leave comes in two parts:
- Ordinary Maternity Leave (the first 26 weeks).
- Additional Maternity Leave (the last 26 weeks).
We'll come back to the significance of the split between these two types of leave later on, in Employer's Obligations. If your employee wants to drop in and keep up-to-date with the business while she's on leave, you can organise "keeping in touch" (KIT) days during this period. Employees can have a maximum of 10 KIT days without any changes to their entitlements. But, for example, from the 11th KIT day, the employee can lose their SMP for that week. You can't force an employee to have KIT days. And you can plan the KIT days as and when during their leave. You must also pay SMP (if your employee qualifies) for a minimum of 39 weeks from the start of the leave. Normally this is when the child is born. You can choose to pay your employees extra, but you should set this out in their employment contract. This is occupational maternity pay. If you're not sure whether one of your employees qualifies for SMP, read our guide: What is Maternity Pay?
When you receive a maternity leave letter, you must respond within 28 days. You must also confirm the start and end dates of their maternity leave during this time. At the end of the Ordinary Maternity Leave, employees retain the right to return to their previous position. However, if any employee takes Additional Maternity Leave, you can reassign them to a new role if you feel their old position is no longer viable. If you reassign them, you must not affect their seniority, pension, or other terms in a negative way. It's your responsibility to make sure that your employee retains their usual terms and conditions of employment while they're on statutory maternity leave. This doesn't include their normal wages since they'll be receiving Statutory Maternity Pay during this time instead. While an employee is on leave for maternity, you should keep her up-to-date with any major business changes, promotion opportunities, or social events at work.
Shared Parental Leave and Paternity Leave
FAQ: Is there maternity leave for men? There is such a thing as paternity leave, which gives men leave for two weeks after their partner gives birth. In terms of pay, it's essentially SMP for two weeks. However, for parents wanting to take shared parental leave (SPL), both should prove that they were in employment for the previous 26 weeks at the beginning of the 15th week before the due date/matching day of the baby or adoptee. This is the case whether one parent wants the majority of the SPL, whether they want equal amounts, or whether they're adopting. For full details on SPL entitlement, visit the Government's page on shared parental leave.
For support on statutory maternity leave or any related issues, speak to one of our experts on 0808 145 3385.
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