Employment Legislation

Maternity Leave And Pay

From time-to-time, you may need to manage a situation where one of your staff requests maternity leave. There are numerous rules relating to this, and many employers seek expert advice to make sure they get it right.

As an employer you can usually reclaim some, or all of the Statutory Maternity Payments that you make…


Your employees are eligible for Statutory Maternity Leave and Pay provided:

  • They have worked for you continuously for at least 26 weeks prior to the “qualifying week” (15 weeks before the expected week of child birth)
  • They earn on average at least £116 per week
  • They have given you the correct notice
  • They have provided proof that they are pregnant
Statutory Maternity Leave

Eligible employees are entitled to take up to 52 weeks’ maternity leave. The first 26 week period is known as Ordinary Maternity Leave, the last 26 weeks as Additional Maternity Leave. The earliest that leave can be taken is 11 weeks before the expected delivery date, unless the baby is born early.

Statutory Maternity Pay (SMP)

SMP for eligible employees has to be paid for a maximum of 39 weeks. The first 6 weeks are paid at a rate of 90% of their average weekly earnings, uncapped. The remaining 33 weeks are paid at £145.18 or 90% of their average weekly earnings, whichever is lower. Tax and National Insurance need to be deducted.

Reclaiming SMP Payments

The good news is, as an employer you can usually reclaim some, or all of the SMP payments that you make. Larger employers can usually reclaim 92% of SMP payments. Smaller employers can usually reclaim 103% of SMP payments if their business qualifies for Small Employers’ Relief. You get this if you paid £45,000 or less in Class 1 National Insurance (ignoring any reductions like Employment Allowance) in the last tax year before the “qualifying week” (15 weeks before the expected week of child birth). This can also apply to parents who are adopting. More information can be found on the Government website – see Related Topics opposite.

Employment rights

The employee’s rights continue during maternity leave and they will continue to accrue holiday entitlement during this period.

Returning to work

It is illegal to allow an employee back to work before 2 weeks after the birth date (or 4 weeks for factory workers). When they return to work their entitlement to SMP ends. Many employees will return to work sooner than the Statutory Maternity Leave of 52 weeks due to the reduced rates of SMP after the first 6 weeks. There are certain requirements of you as an employer for staff returning to work from maternity leave. If an employee returns to work within 26 weeks they have a legal entitlement to resume their original role. However, if they return to work after this period, and your business has changed, you must offer them an alternative role of equal seniority with the same terms and conditions.

Flexible working

Many women who return to work after maternity leave will request flexible working hours to allow for child-care. As an employer, you are obliged to consider any such request in a “reasonable manner”, however are entitled to refuse such a request for a number of business related reasons.

As you can see, the regulations relating to Maternity Leave and Pay are complicated – and we have only listed the basics. There are also specific rules relating to adoption and surrogacy. It’s no wonder that most employers need help managing this.

If you are spending too much time dealing with employment issues and not enough time building your business, get in touch. We can take care of it for you.