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Is maternity leave right for you?

Published 21 February 2023

The controversial suggestion maternity leave is just for ‘lazy mums’ put the spotlight on a period of time off work that many find can be of great benefit to both mother and baby.

Maternity leave can be taken by women who are pregnant or have recently given birth.

It can be valuable time away from work that allows working mums to care for and bond with their new-born child and to rest, recover and adjust to the new addition to the family.

Eligible employees can take up to a maximum of 52 weeks of maternity leave. How much time they choose to take off is up to them.

The spotlight was recently focused on maternity leave when a new mum claimed she went back to work five days after giving birth.

The Glasgow-based model said women who stay on maternity leave are 'lazy'  [1 cited 21.2.23]

She is reported to have said: ‘I think those people are just lazy and looking for an excuse. I think it's important to get back to your old life and back into a work routine.’

For many maternity leave is key in helping to combine work with supporting a healthy child birth and the demands of caring for a child during the precious first year of its life.

Taking a break from work after childbirth can be a time of great uncertainty and lead to obvious fears about what the future holds.

There are many examples of women being treated unfairly as a result of a pregnancy, or after taking maternity leave.

Late last year an employment tribunal found a hairdresser was discriminated against when she was sacked just four days after telling her employer she had fallen pregnant while on maternity leave [2 cited 21.2.23]

The employer insisted she was made redundant for business reasons, an argument rejected by the court.

There is likely to be a significant portion of new parents who fear they will be disadvantaged and limited in their careers if they do take maternity leave.

So, it is worth taking a closer look at current maternity leave legislation and the rights of employees on maternity leave.


What happens if I do not want to take maternity leave?

Whether you want to or not, you have to take time off work after giving birth.

By law you must take a minimum of two weeks maternity leave, or four weeks if you do factory work, after your baby is born.

It is your decision, and entirely up to you, if you then take any additional time off work after that period.

Remember, you have the right to up to 52 weeks' maternity leave. You can take as much or as little of that time off as you choose.

If you are considering not taking maternity leave it is important that you seek advice on the possible implications and benefits of taking or not taking time off work.

If you decide you do not want to take maternity leave, it is essential that you discuss your decision and options with your employer.

It is an opportunity for you to agree on a suitable and appropriate date when you will return to work.

Such a discussion can also be used to agree any necessary arrangements for support you may require.


Who is eligible for maternity leave?

You qualify for Statutory Maternity Leave (SML) regardless of how long you have been employed.

You can take it if you are an employee, and you work under an employment contract. You cannot take SML if you are classed as a worker.

A worker is generally categorised as someone who has a contract or other arrangement to do work or services personally for a reward [3 21.2.23]. A contract can be written or unwritten.

If you qualify for maternity leave and you wish to take it, you must give your employer at least 15 weeks’ notice before the date you are due to give birth.

Inform your employer of the date you wish to start your leave. Usually, the earliest you can start it is 11 weeks before the expected week of childbirth.

You may be asked to put the request and dates in writing. Your employer must then write to you within 28 days confirming your start and end dates.

You cannot get SML if you have a child through surrogacy. You could get Statutory Adoption Leave and Pay (SMP) instead [4 21.2.23]

You can still get SML and SMP if your baby is born early, is stillborn after the start of your 24th week of pregnancy or dies after being born.


How much will I get paid if I do take maternity leave?

You will receive maternity pay, which is typically paid by your employer or the government during the time you are away from the workplace.

Your employer may offer enhanced or contractual maternity pay based on your contract of employment.

If you are entitled to it, the contract should state how much you will be paid while on maternity leave and how long it will be paid for.

So, check with your employer what you are entitled to and what its policy is.

If you are not entitled to contractual maternity pay, then there are two main types of maternity pay: Statutory Maternity Pay and Maternity Allowance.

Statutory Maternity Pay (SMP)

To be eligible for SMP, you must have been an employee for 26 weeks or more by the end of the qualifying week, which is 15 weeks before the expected week of childbirth [5 cited 21.2.23].Your average earnings must also be at least £120 per week before tax and you must give the required notice.

You will be paid 90 per cent of your average weekly earnings (before tax) for the first six weeks.

For the following 33 weeks you will receive £156.66  or 90 per cent of your average weekly earnings (whichever is lower). The rate for SMP is expected to rise to £172.48 per week from April.

It will be paid in the same way as your wages and have the usual deductions for tax and national insurance.

SMP usually starts when you take your maternity leave.

It starts automatically if you are off work for a pregnancy-related illness in the four weeks before the week (Sunday to Saturday) that your baby is due.


Maternity Allowance

If you do not qualify for SMP or you are self-employed, you can receive maternity allowance [6 cited 21.2.23]

It will be paid if you have been employed or self-employed for at least 26 weeks in the 66 weeks before the expected week of childbirth, and have earned at least £30 a week on average.

Currently you will get £156.66 a week or 90 per cent of your average weekly earnings (whichever is less) for 39 weeks if you are employed or have recently stopped working.

If you are self-employed you can at present get between £27 to £156.66 a week for 39 weeks. How much you get will depend on how many Class 2 National Insurance contributions you have made in the 66 weeks before your baby is due.


What rights do I have if I take maternity leave?

You have a number of legal rights and protections during this period to chiefly ensure you are not treated unfavourably as a direct result of a pregnancy or maternity leave.

A lot can happen and change while you are away from the workplace, but you have the right to return to the same job, or a similar job if your original job no longer exists.

The Equality Act 2010 makes it unlawful for your employer to discriminate, harass or victimise you for taking maternity leave [7 cited 21.2.23]

It includes protection against being dismissed, being demoted, or having your pay or benefits reduced because of your pregnancy or maternity leave.

If you believe you have been treated unfairly for taking maternity leave or you are unsure about your rights visit our Employee Support Centre.

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For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 

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