What’s required? What’s optional? And what are the requirements surrounding eligibility, notice and record keeping? Here’s our guide.
Part 1 of this guide looks at Statutory Maternity Leave and Statutory Maternity Pay. For paternity leave, shared leave and adoption leave, please see Part 2.
My employee has told me she is pregnant. What leave and pay is she entitled to?
When it comes to maternity, the government makes a distinction between leave and pay. The rules surrounding the amount of time someone can take off from work differ from the rules governing what you need to pay them.
Statutory Maternity Leave
An employee must take at least 2 weeks off after the birth. If they work in a factory, this doubles to four weeks. Any eligible member of staff can take up to 52 weeks of maternity leave, although they do not have to take all of this. The first 26 weeks of leave is ‘Ordinary Maternity Leave’. The rest is ‘Additional Maternity Leave.’
When does maternity leave begin?
The earliest it can begin is 11 weeks before the baby is due.
Is my member of staff eligible for Statutory Maternity Leave?
Any member of staff who a) has a contract of employment with you and b) gives you notice at least 15 weeks before the baby is due is entitled to Statutory Maternity Leave.
What notice do I need?
At least 15 weeks before the due date the member of staff must tell you when the baby is due. They must also give you a provisional start date for their maternity leave although they can change this providing they give you 28 days’ notice.
The employee should also give you the expected end date of their maternity leave although again, this can be changed with 8 weeks’ notice.
Can I refuse maternity leave?
Providing your member of staff is eligible and has given the correct notice periods, no, you can’t refuse maternity leave, nor can you change the duration of the leave they wish to take.
What is the difference between Ordinary and Additional Maternity Leave?
There’s a crucial difference in the conditions for staff returning before or after the 26 week boundary between Ordinary and Additional Maternity Leave. Anyone returning to work at or before 26 weeks is entitled to return to exactly the same job they had before their maternity leave began.
Anyone returning to work after the 26 week period should be able to return to the same job but, if it is no longer available, you are entitled to place the employee in a similar alternative providing the pay and conditions remain identical.
Statutory Maternity Pay
Being eligible for Statutory Maternity Leave does not automatically entitle your employee to Statutory Maternity Pay (SMP) as the eligibility criteria are stricter. If your employee does not qualify for SMP they may be eligible for Maternity Allowance.
Maternity Allowance can be payable for up to 39 weeks providing the employee has been employed for at least 26 weeks and earns £30 a week or more. Although you will be affected by the leave, you are not required to make any contribution to pay for staff on Maternity Allowance.
Is my member of staff eligible for Statutory Maternity Pay?
To qualify for SMP your member of staff must:
- Be on your payroll in the qualifying week (which is 15 weeks before due date)
- Meet the Statutory Maternity Leave notice requirements and give you 28 days’ notice that they want to start their SMP
- Provide evidence of the pregnancy (usually via a MATB1 certificate or doctor’s note)
- Have been in continuous employment for at least 26 weeks up to the qualifying week
- Have earned at least £120 per week before deductions over an eight week period within the ‘relevant period’.
How much is Statutory Maternity Pay?
SMP is paid at 90% of an employee’s earnings for the first 6 weeks of leave and whichever is the lower of 90% of earnings or the government’s standard rate for the following 33 weeks. Find the current rate of SMP here.
Use this maternity calculator to find out how much you should be paying, and your employee’s leave period:
How do I pay Statutory Maternity Pay?
You pay the employee as usual, through your payroll, at the revised SMP rate. You can then reclaim 92% of SMP (or 103% if your company qualifies for Small Employers’ Relief).
To get the money back you’ll need to use your payroll software to calculate how much SMP you are due and submit the calculation together with an Employer Payment Summary to HMRC.
If you outsource your payroll, your provider should do that for you.
Can I pay more or less than the SMP amount?
If the employee meets the eligibility and notice requirements you cannot pay less than the SMP amounts set by government.
Any employer can, however, choose to pay more than standard SMP amounts by writing more generous terms into staff contracts. Remember, whilst the government will reimburse you for SMP to the value mentioned above, they won’t reimburse you for amounts you choose to pay above the SMP rate.
Can I refuse to pay Statutory Maternity Pay?
Yes, but only if your member of staff doesn’t qualify for SMP – either because they don’t meet the eligibility criteria or they failed to give the required notice. You should give them form SMP1, which explains why their request for SMP has been refused, and direct them towards Maternity Allowance, which they may qualify for.
If your employee feels they should qualify for SMP they can appeal to HMRC and ask for a formal decision. If the decision is in their favour you may be required to bring SMP payments up to date (although you will still be able to claim the amount back).
I can’t afford to pay SMP
In some circumstances you can apply to HMRC for them to pay SMP in advance (as opposed to paying your employee and then claiming back the SMP paid). You can find out more about that here: apply for SMP in advance
To find out how we can help take the payroll burden out of managing maternity and other statutory payments, talk to us.