Maternity Leave V Maternity Allowance

Posted: Wednesday October 26 2016

By: Guest Blogger

In this article, Ceri Widdett talks about the differences between Maternity Leave and Maternity Allowance.

The Facts – Statutory Maternity Leave

By Ceri Widdett

Who has the right to maternity leave?

  • Employees have the right to maternity leave.
  • The length of employment, pay and hours worked are irrelevant.
  • The ‘commissioning mother’ (a mother who has a child born of a surrogate mother) has no right to maternity leave.
  • A surrogate mother does have the right to maternity leave.

What is the entitlement?

  • Pregnant employees are entitled to 52 weeks statutory maternity leave.
  • Employees don’t have to take 52 weeks but they do have to take the first 2 weeks after birth (4 weeks for those who work in a factory).
  • The 52 weeks is made up of 26 weeks ordinary maternity leave (‘OML’) and 26 weeks of additional maternity leave (‘AML”).

Statutory maternity pay

Statutory maternity pay (‘SMP’) will be payable if:

  • An employee has been employed continuously for at least 26 weeks ending with the 15th week before the expected week of childbirth; and
  • Has an average weekly earnings at least equal to the lower earnings limit for National Insurance contributions.

SMP is payable for 39 weeks calculated as follows:

  • First 6 weeks: 90% of average weekly earnings;
  • Following 33 weeks: the SMP rate or 90% of average weekly earnings, whichever is the lower.  

The SMP rate from April 2016 is £139.58 per week

Some employers may have contractual maternity pay which can be more than the statutory rate.

The Facts – Maternity Allowance

Maternity Allowance

Women who do not qualify for SMP may be entitled to Maternity Allowance (‘MA’) , which Jobcentre Plus pays for up to 39 weeks.

To qualify:

In the 66 weeks before the baby is due the mother must have:

  • Been employed or self-employed for at least 26 weeks (these need not be consecutive weeks).
  • On average, earned at least £30 a week in over any 13 of those 26 weeks.

Maternity Allowance may be payable for 14 weeks at a lower rate where the mother is the spouse or partner of a self-employed person and helps in their business.

Notice

To qualify for maternity leave, a woman must tell her employer at least 15 weeks before the baby is due:

  • That she is pregnant;
  • The expected week of childbirth, by means of a medical certificate if requested;
  • The date she intends to start maternity leave.

Once notification has been given, the employer must write to the employee, setting out her return date within 28 days of receiving the notification.

The employee must give eight weeks notice to change the return date.

When can leave start?

OML can start at any time from the beginning of the 11th week before the expected week of childbirth (‘EWC’) up to the date the employee gives birth.

If the baby arrives early the leave will start on the day after the birth.

The starting date is normally a matter of choice for the employee but there is an important exception to this. If an expectant mother has a pregnancy-related absence at any time in the four weeks before the expected week of childbirth, OML is immediately triggered.

An expectant mother can change her mind about when her maternity leave is to start after she has notified a date. This is provided she gives 28 days’ notice of the new start date (unless it is not reasonably practicable for her to do so).

Accrual of pension rights during maternity leave

During OML pensionable service accrues.

During AML, pensionable service accrues during any period of entitlement to pay (including SMP and “keeping in touch days”).

Holiday rights

Holiday rights accrue during OML and AML and should be deferred until the maternity leave.

Sick pay

Contractual sick pay or SSP are not payable in respect of any illness or incapacity during a period of maternity leave.

Antenatal care

Pregnant employees are entitled to reasonable paid time off for antenatal care given on the advice of a registered medical practitioner. This may include relaxation classes and parent-craft classes.

Maternity risk assessments

Employers must generally take into account any health and safety risks to new and expectant mothers.

Risks could include:

  • Heavy lifting or carrying
  • Standing or sitting for long period without adequate breaks
  • Exposure to toxic substances
  • Long working hours

You cannot avoid the risk, the employer must take steps to remove the risk or offer suitable work with no less favourable terms and conditions.

If no suitable alternative work is available, the employer must suspend the expectant mother on full pay for as long as necessary. Enabling to protect her health and safety or that of her baby.

There is no obligation to specific undertake a risk assessment when an employee discloses her pregnancy unless:

  • The work undertaken by the employee gives rise to a risk to the employees’ health, or that of her baby, and the risk arises from processes, working conditions or exposure to physical, chemical or biological agents.

Trivial risks will not trigger the obligation. In O’Neill being exposed to pupils’ cold and coughs was found not to trigger the obligation to carry out a specific risk assessment for a pregnant primary school teacher.

Keeping in touch days

Mothers can work for up to 10 days during maternity leave without losing any statutory maternity pay provided the employer agrees. Payment should be agreed before the mother comes into work.

Redundancy whilst on Maternity Leave

The employee has the right to return to her original job. However, if that is not possible, the employer should offer a similar job on the same terms and conditions.

If a redundancy situation arises, she must be offered a suitable alternative vacancy (if one is available). This is before any other employee and without interview. If there is no suitable alternative work, she may be entitled to redundancy pay.

In a genuine redundancy situation, and where there is no suitable alternative work available for those on maternity leave, pregnant employees (or those on maternity leave) can be made redundant. This is providing that pregnancy and maternity is not the reason for redundancy, the redundancy is genuine, you have followed the correct redundancy procedures and have considered any redeployment.

Selecting a woman for redundancy because of her pregnancy, maternity leave or a related reason is automatically unfair dismissal as well as being unlawful discrimination.

Failure to consult a woman on maternity leave about possible redundancy is likely to be unlawful discrimination.

If a pregnant employee qualifies for statutory maternity pay and is made redundant before going on maternity leave but after the beginning of the 15th week before the baby is due, you will need to pay her statutory maternity pay (SMP) as well as any redundancy payment.

Read more about Maternity leave here.

#Maternity Leave #Maternity Allowance

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