I’m expecting a baby and the due date is in January. I should be entitled to get a maternity pay from my employer, but because my husband found a job in another country we have decided to leave the UK. We are EU citizens so will I still be entitled to get maternity pay even if I leave the country and I definitely won’t come back to work?
You have asked the question as to whether you remain entitled to statutory maternity pay (SMP) if you are either not resident in the UK or remain entitled to or lose your right to work in the UK.
A woman who is “absent from Great Britain for any purpose” will be treated as an employee if she is “gainfully employed” by an employer who is liable to pay secondary Class 1 NI contributions in respect of her. There is a further provision in the Regulations whereby a person working in an EU member state other than the UK who would have been treated as an employee had she been working in Great Britain will be so treated if she is deemed to be subject to UK social security legislation by virtue of EU Council Regulation No. 1408/71 (which is a measure designed to secure the social security rights of workers moving within the European Union). Since the repeal of Regulation 9 of the 1987 Regulations in April 1996, women who travel abroad during maternity leave will continue to be eligible for SMP.
However, what is unknown at this stage is what impact Brexit will have on this situation and we can only advise on the law as it currently stands.
Entitlement to SMP is based on the employee meeting the following criteria.
As the law currently stands, when an employee has satisfied those criteria, she becomes entitled to be paid SMP by her employer and SMP remains payable if the employment is terminated for any reason, including in circumstances where the employee is no longer entitled to work in the UK, although it is not clear whether this is on the condition that the employee remains living in the UK.
However, given the uncertainty created by Brexit, we would recommend that you engage proper legal advice before your upcoming proposed move and before your maternity leave.
*Lucy Flynn assisted in answering this question.
Comments [7]
Philippa says:
Hello. I have a question not sure if anyone can help with. I have ILR in the UK currently and I’ve discovered I’m pregnant, I’m thinking about the possibility to go back home (EU country) to deliver the baby that is due in December, so probably leave the UK around August. Will I be able to keep Maternity leave allowance? Can I then return with the baby back to the UK with no problems?
Thanks in advance
Mandy Garner says:
You can find out more information here and check with your local Job Centre – https://www.gov.uk/claim-benefits-abroad/maternity-and-childcare-benefits
Mari Carmen Bonillo Valverde says:
I have a question, If I got the settle status and my child born in UK, could I spent the maternity pay outside the UK?
Mandy Garner says:
See https://maternityaction.org.uk/advice/eea-and-familymembers-maternityrightsandbenefits/
Florentina Vladut says:
I have a question related to this post.if I move to an Eu country after 1 jan 2021 and when applying for maternity from that country can I still use some of my UK contributions to qualify for this benefit?as long as UK was in the Eu this was possible, what about now?when can we find out?a baby coming doesn’t “care” about brexit.if it s not possible i am forced to remain in UK at least till 11 weeks before due to qualify in here for maternity?thank you !!
Mandy Garner says:
Contact Maternity Action for up to date information about Brexit and maternity rights as they are lobbying on this issue – https://maternityaction.org.uk/get-free-advice/
Mandy Garner says:
See also https://maternityaction.org.uk/advice/eea-and-familymembers-maternityrightsandbenefits/