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Employment Law

Maternity Leave and Pay

Maternity Leave

Employers have a statutory obligation to provide employees with maternity leave of up to 52 weeks. During this period, employees continue to benefit from the terms of their employment including contractual holidays and gym membership etc.

The first 26 weeks of maternity leave is defined as ordinary maternity leave, after which the employee is entitled to return to the same job that she left, i.e. the same salary and seniority etc. If the employee decides to take maternity leave in excess of 26 weeks then this is deemed to be additional maternity leave in which case she is entitled to return to the same job on the same terms and conditions so long as it is ‘reasonably practicable’.  If it is not ‘reasonably practicable’ then she is entitled to return to a suitable alternative on similar terms and conditions or better. If a temp is employed to fill the position they should be informed that the position is temporary so that it is fair and the threat of a dispute over dismissal is reduced. Pregnant employees do not have to take the 52 weeks maternity leave but they are required by law to take 2 weeks off after the baby is born.

Employer’s Rights

Employers must be informed in writing that the employee is pregnant and intends to take maternity leave 15 weeks prior to their due date. The employee must provide medical evidence of when the baby is due and specify the dates of maternity leave starting and finishing.  Within 28 days of receiving the employee’s maternity leave dates you must tell the employee in writing when they are due to start back at work. If the employee changes her mind she is under a duty to give you 8 weeks’ notice and you are entitled to postpone her return to work until the notice period is satisfied so long as this is not beyond the 52 week maternity leave period.

Maternity Pay

In addition to leave, employers must pay statutory maternity pay to employees who have given 28 days of notice for intention to take statutory leave and pay. The employee must have worked continuously for you for 26 weeks up to the 15th week before the expected week of childbirth and must earn on average at least £109 a week.  Statutory maternity pay is paid for up to 39 weeks and is 90% of the employees average weekly earnings before tax for the first 6 weeks. For the following 33 weeks the rate of pay is the lower of £136.78 or 90% of the employee’s average weekly pay. Statutory maternity pay usually starts at the same time as the maternity leave is taken. It is paid in the same way as the employee’s normal pay (i.e. monthly/weekly) and is subject to deductions of tax and national insurance contributions.

Employers should be aware that they are entitled to claim back up to 92% of the statutory maternity pay that they pay to employees and some small employers will even be able to claim some compensation in addition. There is also the possibility of claiming the money in advance if making the payments will cause substantial cash flow problems.

Other Employee Rights

Employers duties’ to pregnant employees are not limited to maternity leave and pay.  The employer has Health & Safety responsibilities towards the employee. There is a duty to carry out a risk assessment to identify any health risks to the employee and their unborn child and any risks should be eliminated.

In addition, employees are entitled to take paid time off work to attend ante-natal appointments and she must show you proof of appointments if you request it.

Further, employers should be careful to avoid what could be construed as pregnancy-related discrimination, by for example excluding them from applying for a senior position or treating them less favourably.

Employers may choose to offer more favourable maternity leave and pay packages but this is at their discretion and the law only sets down the minimum standards required. For bespoke maternity or employment law advice contact John Carruthers Solicitors & Solicitor Advocates.

For expert legal advice call now on: 0141 332 0915

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