Maternity leave can seem terribly complicated at first glance. If you have never managed a period of maternity leave or if you could do with a refresher, these 10 questions will give you the key information you need.
1. Who can take maternity leave?
All pregnant employees are entitled to take statutory maternity leave.
If you have a casual worker (i.e. not an employee) who is expecting a baby she may be entitled to statutory maternity pay but not statutory maternity leave. However there is nothing to stop you agreeing a period of maternity leave as long as you do it fairly and without discriminating against anyone else. If you are unsure of a worker’s employment status, or what arrangements to make regarding maternity leave, do take some advice just to be sure.
2. How long is maternity leave?
Maternity leave is for a maximum of 52 weeks. The employee has the right to choose how much maternity leave she takes but must take at least two weeks, or four weeks if she works in a factory.
3. When can maternity leave begin?
An employee can begin maternity leave any time from 11 weeks before the beginning of the expected week of delivery (EWD) unless the baby arrives early – then maternity leave begins the day after the birth.
4. How does an employee give notice of maternity leave?
An employee should tell you at least 15 weeks before the beginning of the EWD (unless this is not reasonably possible) and she should confirm she is pregnant, when the baby is due and which date she wishes to begin maternity leave. You should write back confirming her maternity leave within 28 days. Unless she has specified otherwise you should assume she is taking the full 52 weeks.
You can request an employee provides a MATB1 form as evidence of pregnancy and EWD but be aware an employee will not be able to get a MATB1 form from her doctor or midwife until she is 21 weeks pregnant.
5. Can an employee change her mind about when and how long to take maternity leave?
Yes, she can change her start date as long as she gives at least 28 days’ notice. She must give at least 8 weeks’ notice of her return date if she is not taking the full 52 weeks. If she decides to resign and not return to her job she must give her contractual notice period as normal.
6. What happens if an employee is off sick during her pregnancy? Can she be forced to begin maternity leave?
If an employee is off sick you cannot make her begin maternity leave until four weeks before the baby is due, and then only if the sickness is related to her pregnancy.
7. Does the employee have the right to return to the same job?
If she returns during or at the end of the first 26 weeks of her maternity leave (known as Ordinary Maternity Leave) she has the right to her old job back as if she hadn’t been away. If she returns during or at the end of Additional Maternity Leave (the remaining 26 weeks) she has the right to return to the same job unless this is not reasonably practical and then should be offered suitable alternative work with the same terms and conditions as her previous role.
As a rule of thumb you should return an employee to their former role unless you can demonstrate that this is absolutely not possible. If you think you may not be able to offer the same job back or are not sure whether the alternative is ‘suitable’, you should take professional advice to avoid the possibility of a costly discrimination claim.
8. What benefits are employees entitled to during maternity leave?
Employees on maternity leave keep all normal employment rights and benefits (excluding wages). This includes benefits such as private health insurance (PHI), childcare vouchers, mobile phone or company car. It may be possible to suspend use of a mobile phone, company car or laptop where it can be shown that the item is exclusively for business use.
Any benefit provided in exchange for salary sacrifice must continue to be offered throughout statutory maternity leave and cannot be deducted from SMP because it is classed as a non-cash benefit.
If you make contributions to a company pension scheme you must continue to do so during any period where the employee is receiving maternity pay. Contributions must be at the same level as they would be if the employee was still receiving salary.
Holiday will continue to accrue throughout maternity leave so it is a good idea to get employees to take as much as possible before going on maternity leave.
9. Do I have to pay a bonus to a woman on maternity leave?
Whether your employee is entitled to a bonus depends on the type of bonus and the terms of the bonus scheme. Contractual performance-related bonuses that form part of normal remuneration should be calculated on a pro rata basis for the portion of the year that the employee was at work plus the two or four weeks’ compulsory maternity leave, but do not have to be paid in relation to the rest of her maternity leave.
Genuinely discretionary bonuses such as Christmas bonuses should usually be paid in full to employees on maternity leave. This is a complicated area of law, so if you have bonuses to consider, do take professional advice.
10. What are Keeping In Touch (KIT) Days?
An employee can work up to 10 KIT days without ending her maternity leave or forfeiting her right to SMP. KIT days are a great opportunity to help an employee feel that she is still part of the team and keep her knowledge and skills up to date which will help make returning to work easier. There is no obligation on an employer to offer KIT days and there is no obligation on an employee to work them. If you do decide to book some in you should agree how they will be paid and what the employee will be doing in advance to avoid any misunderstandings but also to get the most benefit from them.
If you want some advice about your obligations when an employee is on maternity leave, contact us on 01480 387933 or email info@face2faceHR.com.