In her second article on Employment Law for The Consortium, Cate Richie looks at Maternity benefits and payments.

I often have to check the maze of Maternity Legislation, before advising a woman on her rights to maternity leave and maternity pay. Indeed, when the latest major decision relating to maternity rights was reached by the Court of Appeal in December 1998, Lord Justice Ward joined a long line of judges who have criticised the complexity of maternity laws.

“It is surely not too much to ask the legislature that those who grapple with this topic should not have to have a wet towel around their head as the single most important aid to the understanding of their rights.”

Let me try to help; not with a wet towel, but with some guidelines:

Every woman, regardless of her age, length of service or amount paid, is entitled to a minimum of:

• 14 weeks continuous leave.

• Paid time off for ante-natal appointments and classes.

• No dismissal during the period of pregnancy and maternity leave except in highly exceptional circumstances.

• Continuance of all contractual rights.

The difficulty with maternity is that there are two distinct areas: maternity leave and maternity pay. All women are entitled to a minimum of 14 weeks maternity leave, but not all women will be eligible to receive statutory maternity pay (SMP).

Maternity Pay

If a woman earns less than £64 on average per week, she will not be eligible to receive SMP from her employer. Also, if she has less than 26 weeks service at the time that she is 25 weeks pregnant, then she will not be eligible to receive SMP from her employer. She can, however, claim maternity benefit from the Benefits Agency.

SMP is classed as earnings, and is liable to tax and National Insurance deductions. It can be paid on the woman’s normal pay day, at the usual intervals, e.g. weekly on a Friday, or it can be paid in a lump sum. Be aware if you choose to do this, as the employer’s National Insurance contributions are likely to be higher.

Women expecting more than one baby do not receive additional amounts of SMP!

SMP is paid for a total period of 18 weeks. Whilst most women will vary on the timing of their pay period, SMP cannot be paid out before the woman is 29 weeks pregnant. However, if a woman has chosen to stay at work until later than 34 weeks pregnant, and she is absent from work because of some pregnancy-related illness (such as pre-eclampsia), then her maternity pay will automatically begin in the following pay week. So all women will take their maternity leave, and therefore receive their SMP, some time between 29 and 39 weeks pregnancy. There is no limit as to how long a woman can elect to stay at work, prior to taking maternity pay and commencing her SMP. She must have stopped working however, by the week in which her baby is due. Obviously if the baby arrives earlier than expected, the maternity leave and SMP are automatically triggered!

Whilst SMP is paid for a total of 18 weeks, there are some circumstances that would result in SMP being stopped early or not paid:

• If the woman is taken into custody.

• If the woman dies.

• If the woman comes in and works during the time that she is receiving SMP.

• If the woman is entitled to only the basic maternity leave of 14 weeks, she will only receive SMP for those 14 weeks.

• If a pregnancy ends in a stillbirth before the end of the 24th week of pregnancy then SMP is not paid, but if a stillbirth occurs after the 24th week of pregnancy then SMP would be paid as normal.

SMP rates are as follows:

            Nine-tenths of the woman’s average weekly pay for the first 6 weeks and £57.50 per week for up to 12 weeks thereafter.

Every employer can reclaim SMP paid out to employees. If you are a small employer, paying out less than £20,000 gross National Insurance contributions (employees and employers) in the last tax year, you can reclaim 100% of SMP paid, plus 7% compensation. Even if you are not a small employer, you can still reclaim 80% of the SMP paid out.

If an employer is not paying a woman’s SMP because she is not eligible, then he must provide the woman with a form SMP1 which is available from the Benefits Agency. She should then use this document to claim maternity benefit.

Maternity Leave

Basic maternity leave is 14 weeks. Unless a woman has more than two years service she will not be entitled to receive extended maternity leave.

It is prohibited for any woman to work in the two weeks following childbirth, and any unscrupulous employer failing to comply with this ruling could be subject to a fine of up to £500!

Maternity leave can begin any time after the 29th week of pregnancy, but the woman must give her employer at least 21 days notice of her pregnancy and her intention to stop on maternity leave. However, if the baby is born early, then notice should be given as soon as is reasonably practicable. A pregnant woman must also give her employer at least 21 days notice of the date her baby is due, usually by way of a MAT B1 which she will be given by her midwife or doctor.

The period of basic maternity leave can be extended only in rare circumstances relating to Health and Safety. A woman cannot extend her basic maternity leave on medical grounds. She is however, protected from dismissal for absence for medical reasons during her first four weeks back at work.

All contractual entitlements such as company car, private health insurance and holiday entitlement accrual should be maintained during the period of basic leave.

Extended Maternity Leave

Extended maternity leave can last up to 40 weeks. A woman qualifying for extended maternity leave can start her leave at any time after her 29th week of pregnancy, until the 29th week after the birth of the baby. This means that if a baby is born later than expected, theoretically the woman can have a longer break. Women returning from extended leave are obliged to provide at least 21 days written notice of the date on  which she intends to return to work.

In order to qualify for this extended leave, a woman must have at least two years service with the employer on her 29th week of pregnancy. It is also imperative that the woman provides confirmation of her intention to return to work following the birth of her baby. As with the basic leave, she must also provide a MAT B1 three weeks before the expected date of the birth.

Return to Work

Employers do have the right to seek confirmation during maternity leave of the woman’s intention to return, providing that it is not done before the 11th week of the leave. She is obliged to respond to that request within 14 days or she will lose the right to return to work. The employer’s letter, however, must stipulate that this will be the case.

In cases of extended maternity leave, a woman may postpone her return to work by up to four weeks providing she has a Doctor’s certificate stating that she is unfit for work.

In the case of a company which employs five people or fewer, including the pregnant woman, the woman does not have the statutory right to return to work if it is not reasonably practicable for the employer to allow this. However, if you fail to allow a woman to return, and she takes her case to an Employment Tribunal, the onus is on the employer to prove that it would not have been reasonably practicable.

Once a woman returns to work, she has the right to expect her old job back or the same type of job, in the same place and in the same capacity. If her job is genuinely no longer available, then she has the right to be offered any other suitable vacancy. Her employment rights must not be any less favourable than she enjoyed before.

If a woman requests part-time work, having previously been employed on a full time basis, then an employer must have very good reasons for refusing to co-operate! If a woman is refused part-time working, she could bring a complaint of indirect sex discrimination against her employer to an Employment Tribunal. Providing she can show that she has suffered a detriment by the employer’s refusal to allow her to go part-time, employers will have a very difficult case to answer in justifying the decision to fill the job on a full-time basis.

A maze indeed!

Most maternity cases are straightforward, and women either choose to return or are happy not to return. It is important, though, to ensure that a pregnant employee is fully aware of her obligation to you, her employer, during pregnancy and childbirth.