All employees have basic legal maternity rights, including the right to up to 52 weeks’ maternity leave, although not all of that will be paid.
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Statutory maternity leave is available solely to a mother or person giving birth. In a surrogacy situation, the surrogate is entitled to maternity leave and the intended parents (if eligible) are entitled to adoption leave and paternity leave.
To qualify for statutory maternity leave, you must be an employee and you must give the relevant notice. There is no minimum qualifying period of service, it is a day one right. At least 15 weeks before your due date, tell your employer when the baby is due and when you want to start your maternity leave. Your employer can ask for this in writing.
You can change the date of your maternity leave if you give your employer notice. This must be at least 28 days before either the original date, or the new date (whichever is earlier).
For detailed information about resigning during pregnancy or maternity leave and how this affects your statutory rights see this factsheet from Maternity Action, to which the CSP is an organisational affiliate.
Maternity leave is compulsory for the first two weeks after your baby is born for most people. You can choose how much of your statutory maternity leave entitlement you wish to take after that.
You can take up to 52 weeks’ statutory maternity leave. The first 26 weeks is known as ‘ordinary maternity leave’ (OML) and the last 26 weeks as ‘additional maternity leave’ (AML).
The earliest that leave can be taken is 11 weeks before the week your baby is due to be born childbirth (the ‘expected week of confinement’, EWC) unless the baby is born early. But if you are ill for a pregnancy-related reason during the four weeks before the EWC your employer is entitled to ask you to start your maternity leave at that time.
You will only receive statutory maternity pay (SMP) if you meet the qualifying criteria. It is paid for up to 39 weeks, with the first six weeks paid at 90% of average pay and the remainder at either the statutory amount, or at 90% of earnings if this is lower.
To qualify for statutory SMP you must have been continuously employed by your employer for at least 26 weeks by the end of the 15th week before your baby is due AND earn at least the lower earnings limit, which is updated annually.
If you are not eligible for SMP, you may be eligible for maternity allowance (MA), although you still need to meet qualifying conditions.
A pregnant employee is entitled to paid time off to attend antenatal appointments. The right applies to employees from day one of their employment, and to agency workers with 12 weeks’ service in the same job. As well as GP and midwife appointments it can include classes such as relaxation, pregnancy yoga and parenting so long as they are recommended by a registered midwife or medical practitioner.
Fathers, partners (including a spouse, civil partner, or partner in an enduring relationship) and intended parents in a surrogacy situation are entitled to unpaid time off to accompany them. This right applies to employees from day one, and agency workers with 12 weeks’ service in the same job. It is limited to two appointments of a maximum of six-and-a-half hours each.
All your contractual terms and conditions stay the same during your statutory maternity leave, except for pay. Annual leave will continue to accrue during your leave and you will need to agree with your employer when you can take it. They may allow you to add it on to the end of your maternity leave.
An employee who is unable to use up their full statutory annual leave before going on maternity leave because of the timing of their holiday year must be allowed to carry it over to take after the maternity leave has ended. Failure to allow the person to forfeit leave would be classed as maternity discrimination.
Your maternity leave counts towards your period of continuous service for the purpose of preserving your employment rights.
You are entitled to work up to 10 days during your maternity leave without losing the right to receive SMP. These are called keeping in touch (KIT) days and they are voluntary. If you do work a KIT day, your employer does not have to pay your normal day’s pay, although most do. But they must pay you at least the national minimum wage.
Any work or training, even if just for a few hours, will count as one of the ten KIT days.
You are entitled to return to work after the end of your 52 weeks’ maternity leave without giving your employer any notice. However, if you intend to return earlier, you must give them at least eight weeks’ notice of your intended return date (although they may agree to your return with shorter notice).
When you return to work after your ordinary maternity leave (OML), you are entitled to the same job, seniority, pension and other rights as if you had not been on leave. If you return after additional maternity leave (AML) you have the right to return to the same job - unless your employer can show that this is not reasonably practicable. In that case, they must offer you another job that is suitable and appropriate for you, on the same terms and conditions.
If you decide not to return, you should give notice to end your employment in the usual way. You do not have to give back any SMP, but there may be conditions attached to any additional contractual maternity pay that you received.
You have specific rights if you have a miscarriage or stillbirth or if your baby dies.