Maternity leave – your questions answered

Russell Jones & Walker Solicitors have developed this useful article for the NCT.

When should I commence my maternity leave?

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, see below for more detail). You have to start it no later than the week the baby is due.

Do I have to notify my employer that I am pregnant?

There is no obligation to tell your employer that you are pregnant, but many of the legal protections for pregnant women at work only apply once you have done so. In particular, your employer will need to know about your pregnancy in order to allow time off for ante-natal care, and to conduct a risk assessment of your role.

There are strict notice requirements in order to qualify for maternity leave and maternity pay. You should give your employer notice of your pregnancy and the dates on which you intend to take maternity leave by the 15^th week before your due date at the latest.

How much maternity leave can I take?

You can take up to 12 months maternity leave, irrespective of how long you have been working with your employer. If you return within 6 months you have the right to return to the same job. If you return after 6 months but less than 12 months you have the right to return to the same job or, if that is not possible, to a job which is a suitable alternative and with conditions which are no less favourable.

Do I get paid during my maternity leave?

Although all women are entitled to maternity leave, there are stricter requirements to qualify for maternity pay.

To qualify for Statutory Maternity Pay (SMP) you must have been employed for 26 weeks by the qualifying week which is 15 weeks before the baby is due. You must have earned above the Lower Earnings Level for National Insurance, which is currently £90 per week.

You must also have given your employer written notice by the 15^th week before your due date.

If you qualify for statutory maternity pay you will receive 6 weeks SMP at the higher rate, which is 9/10ths of your average pay. A further 33 weeks will be paid at the lower SMP rate. In total, SMP is paid for 39 weeks. The lower rate is currently £117.18.

If you do not qualify for SMP, you may be entitled to receive statutory maternity allowance. This is paid direct by the Benefits Agency at the same rate as the lower rate of SMP.

If you have an entitlement to maternity pay or leave in your contract which is better than the legal minimum as set out above, you are entitled to the benefit of your enhanced scheme instead of (not as well as) the legal minimum scheme.

Am I entitled to time off to attend antenatal appointments?

Yes. You are entitled to paid time off work for ante-natal appointments made on the advice of a registered medical practitioner, midwife or health visitor. Antenatal care may include relaxation classes and parent-craft classes. After the first appointment, you must show your employer, if requested, a certificate from a registered medical practitioner, midwife or health visitor, confirming your pregnancy together with an appointment card or some other document showing that an appointment has been made You should be allowed to attend any appointments recommended by your GP or midwife.

What work should I do when I am pregnant?

All employers are required to undertake a general risk assessment to identify any risks to pregnant women or new mothers at work. This obligation arises even before anyone notifies a pregnancy.

A specific assessment of the risks to you must be carried out when you inform your employer of your pregnancy. This must be kept under review throughout your pregnancy. You should be given the opportunity to discuss the risk assessment with your managers or supervisors and your medical advisors.

If you cannot continue in your role because of a health and safety risk, your employer must consider altering your work (or your hours of work) so that the risk is removed. If this is not possible, your employer must find alternative work for you to do. If your employer is unable to find a suitable job they must place you on paid leave called “maternity suspension”. This lasts until the date you have notified as the start of your maternity leave.

Your employer should not remove you from your duties without undertaking a proper risk assessment or seeking medical advice. If your employer were to move you from your role based on the assumption that your pregnancy precluded you from continuing to carry out your work and without having undertaken a risk assessment or sought medical advice, you may have a claim for sex discrimination.

Will I lose any of my pay or benefits if I have to change my duties during pregnancy?

Your pay and benefits are protected whilst you are pregnant and remain at work. You should not lose any pay or benefits if your role changes as a consequence of your pregnancy.

Should I work nights or shifts?

The Management of Health and Safety at Work Regulations 1999 provide that a pregnant woman should be withdrawn from night work if her doctor certifies that it would endanger her health or that of her child. You should discuss any concerns about your shift pattern with your medical professionals. If they certify that you or your baby’s health is likely to be affected you should not be expected to work shifts.

What happens if I become sick whilst I am pregnant, but before my maternity leave actually starts?

You are entitled to take sick leave before your maternity leave starts. This will not affect your entitlement to maternity leave unless your sickness is pregnancy-related and occurs in the four weeks before the week in which your baby is due. In that case, your SMP will automatically start. Sickness which is not pregnancy-related will not trigger the SMP pay period in this way.

Pregnancy-related sickness absence prior to maternity leave should not be taken into account for the purposes of any sickness absence policy, or when considering dismissal or other detrimental treatment.

Will my pregnancy related sickness affect my pay?

Pregnancy-related sickness absence can be treated by an employer in the same way as any other sickness absence for pay purposes. For example, pregnancy-related sickness can be taken into account when considering whether you are entitled to sick pay.

What contact will I receive from my employer while I am on maternity leave?

You are entitled to return to work for short periods of up to 10 days while on maternity leave, without this impacting in any way on your SMP entitlement. These ‘keeping in touch’ days could be used for training, refreshers, normal work or anything which you and your employer agree. You cannot be forced to attend to work on these days – it is up to you whether you would like to.

Can I continue breastfeeding when I return to work?

Yes. The protections of the Management of Health and Safety at Work Regulations 1999 extend to breastfeeding workers. A risk assessment must be carried out to identify whether there are any particular risks for you as a breastfeeding mother from the workplace or from the role it is proposed that you perform. Before you return to work you should discuss this with your employer. If you wish to continue to breastfeed after you return to work, you should expect to be provided with hygienic, private facilities and appropriate storage facilities for expressed milk.

You should not suffer less favourable or discriminatory treatment because of your desire to breast-feed.

Will I be entitled to Parental Leave?

Yes. Each parent is entitled to unpaid leave for up to 13 weeks in total (not each year) for each child below the age of 5 (or a disabled child up to age 18). Parental leave can only be taken in blocks of one week.

I am adopting a child, will I be entitled to paid leave?

Parents who are adopting who have been with their employer for 26 weeks by the end of the week that they are notified that they have been placed with a child are eligible for Statutory Adoption Leave for 52 weeks. The first 39 weeks will be paid at Statutory Adoption Pay rate (SAP) which is the same as the lower rate of SMP.

Do I have a right to go part-time when I return from my maternity leave?

You do not have an automatic right to work part-time, but as an employee you have the right to have a request for part time working or other flexible working properly considered by your employer. If your employer fails to consider your application properly, you may have a claim.

If your request is refused, you may have a claim for indirect sex discrimination, depending on whether your employer can put forward good business reasons why your request cannot be permitted.