Statutory maternity rights and pay

The Work and Families Act 2006 which came into effect on 1^st October 2006 outlines new rights and responsibilities both for  employers and employees in respect of maternity provisions, in line with the Government's family-friendly agenda. 

The Act:

• Extends maternity and adoption pay from six to nine months with effect from 1 April 2007, towards the goal of a year's paid leave by the end of the Parliament.

• Extends the right to request flexible working to carers of adults from 1 April 2007.

• Gives employed fathers a new right to up to 26 weeks' Additional Paternity Leave some of which could be paid, if the mother returns to work.  This will be introduced alongside the extension of maternity pay to 12 months.

• Introduces measures to help employers manage the administration of leave and pay and plan ahead with greater certainty from April 2007;

• Helps employers and employees to benefit from improved communication during maternity leave.

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This is in addition to 

• Paid time off for ante-natal appointments,

• Maternity leave and pay

• The right not to be treated unfairly because of pregnancy or maternity leave.

The laws also protect the employer, for example, making sure they have time to plan for a worker's maternity leave, so talking to the employer about maternity leave plans from an early stage will help both employer and employee.

Set out below is what should be done or considered to assist managing the pregnancy, the maternity leave and the return to work.

As soon as you know you are pregnant

Think about when to tell the employer you are pregnant – the laws which protect you at work only apply once your employer knows you are pregnant.

Your partner may be able to take up to two weeks paid paternity leave once the baby is born. They will need to give their employer the correct notice so they should find out about it now

Why

Once your employer knows you are pregnant they must:

• Conduct a risk assessment and remove risks or make alternative arrangements to protect your safety, and your baby's safety, when you are at work.

• You are entitled to paid time off to attend ante-natal appointments and classes which are advised by your midwife or medical practitioner. Your employer can ask for evidence of your appointments from the second appointment onwards.

• You are protectedfrom unfair treatment, including dismissal, connected with your pregnancy.

Your employer may also offer extra benefits, e.g. extra maternity pay on top of what you are entitled to under the law. These benefits are contained in Section 15 of the Agenda for Change NHS Terms and Conditions of Service Handbook and outlined above

If you are off work with a pregnancy-related illness your employer must pay you in the same way as for any other type of illness. But if there are disciplinary rules related to sick leave in your workplace pregnancy-related illness must be excluded. You must not be treated unfairly because of any pregnancy-related illness.

What to do - by the 15th week before your baby is due (this means you will be around 25 weeks pregnant)

• Tell your employer you are pregnant (if you haven't already)

• Tell your employer when you want your maternity leave and pay to start; this can be any time from 11 weeks before your baby is due (but if you are off work because of your pregnancy in the four weeks before your baby is due your employer may start your maternity leave and pay)

• Give this notice in writing if your employer asks you to (you may want to do this anyway - there is a standard letter to help if you wish)

• Give your employer the maternity certificate (form MATB1) which your midwife will give you after the 21st week of your pregnancy. This confirms when your baby is due.

You can change your mind about the date you start your maternity leave but you must give your employer 28 days' notice of the change. If you aren't planning to take your full maternity leave you must let your employer know when you will be coming back. You can change your mind later on as long as you give eight weeks' notice of the change. If you change your mind to come back later, you must give eight weeks' notice before the original earlier date.

Why

You must give the correct notice so you can take maternity leave and receive maternity pay. Your employer must write to you within 28 days of your notice about your maternity leave to confirm when you are due back at work. If your employer doesn't do this you will be entitled to change your mind and return when you want without giving notice.

You are entitled to take up to 52 weeks' maternity leave. You aren't allowed to work for the first two weeks after the birth (or the first four weeks if you work in a factory). During the first 26 weeks' maternity leave (ordinary maternity leave) your employer must continue to give you any contractual benefits you would normally receive as if you were at work (for example gym membership). You aren't entitled to these in the second 26 weeks (additional maternity leave) although your employer may continue to offer contractual benefits during this period.

You continue to be an employee throughout your whole 52 weeks of maternity leave.

Your employer must pay you Statutory Maternity Pay (SMP) if you qualify. SMP is paid for up to 39 weeks. You will receive 90 percent of your average earnings for the first six weeks and then a flat rate for the rest of the time (unless the 90 percent rate is less than the flat rate in which case you will get that for the whole time). Tax and National Insurance are payable on SMP.

You will qualify for SMP if you already worked for your employer before you became pregnant and you earn at least enough to be relevant for National Insurance purposes.

Your employer must tell you if you don't qualify by giving you form SMP1. You can take the form to Jobcentre Plus to claim Maternity Allowance (MA) instead. (In Northern Ireland you can take it to the Jobs and Benefits Office). MA is paid for 39 weeks at the lower of a flat weekly rate or a weekly rate equal to 90 per cent of your average earnings, if that is less.

If your employer contributes to an occupational pension they must continue to make their usual contributions for the whole time you are receiving any SMP or contractual maternity pay.

What to do - before you begin your maternity leave and during your leave

You should talk to your employer to agree what kind of contact you will have with your workplace during your maternity leave, for example:

• How you will be told about changes happening at work, including job vacancies.

• Would you like an opportunity to work to help you keep in touch, or to attend a particular event or take up a training opportunity? If so you can agree up to 10 days of work during your maternity leave.

You and your employer may find it helpful to start talking about these plans early.

Why

You and your employer maymake reasonable contact during your maternity leave. Keeping in touch with work can help to make it easier when it is time to go back. As well as staying in contact with your employer during your maternity leave, if you and your employer both agree you cando up to 10 days' work during your maternity leave. These are known as Keeping In Touch Days. They aren't limited to your usual job - they could be used for training or other events. You may want to use some Keeping in Touch Days to ease your return to work. You cannot work during the first two weeks (four if you work in a factory) after the baby is born.

You and your employer must both agree that you will work these days and agree the arrangements including what you will be doing and how you will be paid. You can't be required to take up Keeping in Touch Days; it is up to you to choose. Nor does your employer have to offer them to you. Your employer cannot demand that you go into work at any time during your maternity leave period nor can you be penalised for refusing to take up a Keeping in Touch Day.

What to do - before you return to work

You should plan your return to work with your employer. If you are still going back on the date you told your employer there is no need to give any more notice.

If you want to change your date of return you must give your employer 8 weeks' notice of the change.

There are options to help you and your partner to balance caring for your child and work:

• The right to request flexible working

• Rights to time off such as parental leave and time off to deal with a family emergency

• Financial support from the Government such as tax credits.

You should talk to your employer in good time if you want to try to agree a different working pattern to the one you worked before your maternity leave. With some employers this can be done informally, otherwise there is a set procedure you must follow to make a written request under the right to request flexible working. Your employer may take up to six weeks to reach a decision on a formal request so it is important to plan ahead.

You should let your employer know if you are planning to breastfeed when you return to work and want to be sure of your health and safety protection.

If you decide not to return to work you must give your employer at least the amount of notice for leaving your job under your contract. It would help your employer if you let them know as soon as you are sure.

You are still entitled to receive SMP or MA for up to 39 weeks even if your employment ends, so long as you don't start work again.

Why

Planning will make your return easier for you and your employer. If you don't give enough notice of your new return date your employer may postpone your return until they've had eight weeks' notice.

If you return to work during or at the end of the first 26 weeks (ordinary maternity leave) you are entitled to the same job on terms and conditions (e.g. your salary, hours and the seniority of your job) as if you hadn't been away.

If you take additional maternity leave (if your maternity leave is for more than 26 weeks in all) you are entitled to the same job on the same terms and conditions but if your employer cannot give you the exact job back for good reasons, you are entitled to a suitable job at the same level with terms and conditions at least as good as your previous job.

As the parent of a child under six you are entitled to make a request to change to a flexible working pattern. You must follow the correct procedure if you want the law about requesting flexible working to apply. Your employer must seriously consider your request and follow their part of the procedure.

Your employer must carry out a risk assessment to identify risks to you as a breastfeeding mother or to your baby. If there are risks they must do all that is reasonable to remove the risks or make alternative arrangements for you. Your employer must also provide suitable rest facilities.

You are required by law to give the right notice if you are resigning, but giving longer is helpful. You are still entitled to SMP or MA even if you are not going back to work. Your maternity leave and employment protections continue until the date you give as the end of your employment. This could be the end of your maternity leave if you choose.

Your notice period can run during your maternity leave.

What to do - If there is a problem

You should talk to your employer as soon as you can to try to resolve the problem.

You can get free confidential advice from your steward or Regional Officer or the Acas Helpline 08457 47 47 47 or, in Northern Ireland the Labour Relations Agency on 028 9032 1442.

Think about whether there is other support you can use to help you find a solution. You may need to bring a formal grievance if you cannot resolve the situation.

If you disagree with your employer's decision about your entitlement to Statutory Maternity Pay and you cannot resolve this with your employer, you can ask HMRC for a decision. Contact your local HMRC office via www.hmrc.gov.uk

Why

It is better for you and your employer if you can sort out any problems between yourselves quickly.

You are protected from any unfair treatment connected with your pregnancy or maternity leave.

If there is a redundancy situation during your maternity leave you are entitled to be offered any suitable alternative vacancy.