Maternity Leave

Read out guide outlining detailed information about your rights to maternity leave as laid out by UK employment law and in line with the ACAS code of practice.^[1]

When can your maternity leave start?

You can choose when to start your maternity leave.^[2] It can be at any time in, or after, the 11th week before your baby is due. However, your maternity leave will start automatically if you're off work for any reason to do with your pregnancy from the fourth week before your baby is due.

Telling your employer that you want to take maternity leave

You must tell your employer, preferably in writing, by the end of the 15th week before your baby is due. There may be occasions that this may not be possible, for example because you didn’t realise that you were pregnant, then you must inform the employer as soon as possible.

You must inform your employer:

• that you're pregnant

• the date your baby is due

• the date you want your maternity leave to start, you can change this date if you give your employer 28 days’ notice

You must produce a medical certificate (MATB1),^[3] if your employer asks for one, showing when your baby is due. You can get your MATB1 from your midwife or GP after you have been pregnant for 21 weeks. Once your employer has received your notice that you want to take maternity leave, your employer must write to you within 28 days and tell you the date your maternity leave runs out and therefore the date when you are expected to return to work from maternity leave.

How much maternity leave will you get?

Most women employees have the right to take up to one year’s (52 weeks’) maternity leave.^[4] This is a mixture of 26 weeks Ordinary Maternity Leave and 26 weeks of Additional Maternity Leave.

To qualify for Statutory Maternity Leave you must be an employee and give your employer the correct notice. If this is satisfied you can take Statutory Maternity Leave no matter how long you have worked for your employer, how many hours you work or how much you are paid.

The only employees who don't have this right are:

• share fisherwomen

• women who are normally employed abroad (unless they have a work connection with the UK)

• self-employed women

• Policewomen and women serving in the armed forces.

You can choose how long you take off work for maternity leave, up to a maximum of 52 weeks. However, the law says that you must take at least two weeks immediately after the baby is born. If you work in a factory, you must take at least four weeks.

What are your employment rights whilst working and pregnant?

When you are working and you’re your pregnant, your employer must protect your Health and Safety and you may have the right to paid time off from work for antenatal care. You are protected against unfair treatment by your employer.^[5]

Your basic rights when working as you are pregnant.

• Paid time off from work for antenatal care

• Maternity pay and benefits

• Maternity leave

• Protection against unfair treatment and/or dismissal

• Obligations to ensure your Health and Safety

Time off from work for antenatal care

All pregnant employees are entitled to reasonable time off work for antenatal care,^[6] regardless of how long they have been in the employment. Any time off must be paid at your normal rate of pay and it is unlawful for your employer to refuse to give you reasonable time off for antenatal care or to pay you at your normal pay.

Your employer is entitled to ask you for evidence of your antenatal appointments from the second appointment onwards. If you are asked, you should provide to your employer a medical certificate showing your pregnant and an appointment card or some other written evidence of your appointment.

Antenatal care may include relaxation or parent classes as well as medical examinations, as long as they are recommended by your doctor. It is important, if you can, to try and avoid taking time off work when you can reasonably arrange classes and appointments outside of working hours.

What are your employment rights while on maternity leave?

The first 26 weeks of maternity leave are called Ordinary Maternity Leave (OML).

During OML, you will still get all the same rights under your contract of employment as if you were still at work. The only exception is that you will not get your normal pay unless your contract allows for it. But you will, for example, still be entitled to build up holiday and to get any pay increase.

Though you are not entitled to your normal pay, most women employees are entitled to Statutory Maternity Pay or Maternity Allowance.

As well as Ordinary Maternity Leave (OML), you can also take an additional 26 weeks' maternity leave. This is called Additional Maternity Leave (AML). This gives a total of up to 52 weeks’ maternity leave. If you're taking AML, this must follow on directly after OML and there must be no gap between the two.

Your terms and conditions of employment remain the same throughout both OML and AML. Whether you are entitled to be paid during all or part of your maternity leave depends on your contract of employment and whether you are entitled to Statutory Maternity Pay (SMP).

Keeping in touch with your employer during your maternity leave

When you are on maternity leave, your employer should keep you informed of issues which may affect you.^[7] For example, you should be informed of any relevant promotion opportunities or job vacancies that arise during your maternity leave.

The amount and type of contact between you and your employer must be reasonable. Contact can be made in any way that best suits either or both of you. For example, it could be by telephone, by email, by letter, by you making a visit to the workplace or in other ways.

You are also allowed to work for up to ten days during your maternity leave without it affecting your maternity pay. These are called 'Keeping in Touch Days'.

Both you and your employer must agree about whether you work any Keeping in Touch Days, how many you will work, when you will work them and how much you will be paid for them. You are under no obligation to work them and your employer is under no obligation to offer them to you.You must also agree between you what sort of work you will do. Keeping in Touch Days could be particularly useful in enabling you to attend a conference, undertake a training activity or attend for a team meeting.

The rate of pay is a matter for agreement with your employer. It may be set out in your employment contract or agreed on a case-by-case basis. However, you must be paid at least the National Minimum Wage.^[8]

Maternity leave and continuous employment

Some employment rights, such as the right to claim statutory redundancy pay, depend on how long you have worked for your employer. The length of time you have worked for your employer is the length of your ‘continuous employment’. It is important, therefore, to note that time spent on maternity leave counts when calculating how long you have been with your employer.

Your right to return to work after maternity leave

Your employer will assume that you will take all 52 weeks of your Statutory Maternity Leave. Before you go on maternity leave, your employer should tell you the date your maternity leave ends. This will be 52 weeks after your maternity leave starts. However, you and your employer may agree on a different date for your maternity leave to end. If you decide you want to return to work earlier than this, you must give your employer eight weeks’ notice in writing of your new date of return to work.

Right to return after your Ordinary Maternity Leave

All women have the right to return to their old job after 26 weeks’ Ordinary Maternity Leave.

If your employer refuses to let you return after your Ordinary Maternity Leave

If you're not allowed to return to work after your Ordinary Maternity Leave, you may be able to:

• make a claim for unfair dismissal, and

• make a claim for discrimination because of pregnancy and maternity leave.

Both of these claims can be made regardless of how long you have worked for your employer or how many hours a week you work.

If you are sick at the end of your Ordinary Maternity Leave

If you're sick when you are due back to work at the end of your Ordinary Maternity Leave (OML), you must get a medical certificate to send to your employer. Your OML will end at the end of the 26th week and you will then go onto sick leave. You will be protected from unfair dismissal for an additional four weeks after your 26 weeks’ OML if you are sick for this period.

Right to return to work after your Additional Maternity Leave

If you wish to return to work after AML, you should be offered your old job back, unless this is not reasonably practical. If it is not reasonably practical to offer you your old job back, you must be offered a job that is suitable for you and appropriate in the circumstances, on the same terms and conditions as your old job.

For example, your pay must be at least the same as your old job.

Right to return part time

You have no automatic right to return to work part time after maternity leave. However, you may have the right to ask for flexible working^[9] and this request must be considered seriously by your employer. If they do not consider it seriously, this could be discrimination.

Maternity pay

While you are on maternity leave, you may be entitled to maternity pay either under your contract of employment or by law through Statutory Maternity Pay or

Maternity Allowance, which can be paid for up to 39 weeks. The rules about maternity pay depend on how long you've worked for your employer, how much you earn and what your contract says.

Statutory Maternity Pay

Statutory Maternity Pay will be payable if you have been employed continuously for at least 26 weeks ending with the 15th week before the expected week of the child’s birth, and has an average weekly earnings at least equal to the lower earnings limit for National Insurance contributions. Statutory Maternity Pay is payable for 39 weeks; the first 6 weeks it is paid at 90% of the average weekly earnings. The following 33 weeks will be paid as the Statutory Maternity rate or 90% of the average weekly earnings whichever is the lower. The Statutory

Maternity Pay rate is £136.78 from April 2013 per week , which is reviewed every year.

Breastfeeding

You should let your employer know, preferably in writing if you are planning to breastfeed when you return to work.^[10] Ideally you should do this before you return to work in order for your employer to put any plans in place. Your employer must carry out a risk assessment to identify any risks to you as a breastfeeding mother or to your baby. You employer must do all that is reasonable to remove the risks and provide a suitable rest facilities. Ideally your employer should provide private, healthy and a safe environment for nursing mothers to express and store milk, although there is no legal requirement to do so.

Other parental rights

If you’re pregnant or have just had a baby, you may have other rights. These rights include:

• the right of all pregnant women to take time off work for ante-natal care

• the right of all pregnant women to work in a safe environment

• the right of all pregnant women to claim unfair dismissal if dismissed because of pregnancy.