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workingmums.co.uk spells out your rights when it comes to maternity pay.
So, you’re pregnant and trying to calculate your rights to maternity pay? There are several types of maternity pay, depending on how long you’ve been in a job, your earnings and your employment status. Here in our guide to maternity pay we outline your rights when it comes to Statutory Maternity Pay, Maternity Allowance and enhanced maternity pay.
Women are entitled to Statutory Maternity Pay (SMP) if they have been employed by their employer for a continuous period of at least 26 weeks ending with the 15th week before the expected week of childbirth [ie they must have become pregnant after they started the job and be still employed as of the end of the 26th week of their pregnancy], and if they have average weekly earnings in the eight weeks leading up to the 26th week of pregnancy of at least equal to the lower earnings limit for National Insurance contributions, which is currently £120 a week.
From April 2022 the standard rate of SMP is £156.66 a week (or 90% of your average weekly earnings if this is less than £156.66 a week).
For the first six weeks the rate is 90% of average weekly earnings with no maximum limit. The standard rate of SMP is reviewed every April.
SMP can be paid for up to 39 weeks; it is payable by the employer but partly (or, for small firms, wholly) reimbursed by the state.
The first 26 weeks of maternity leave are referred to as Ordinary Maternity Leave (OML). During this time women are entitled to the same contractual rights, including pension and holidays, that they would have enjoyed had they not been on leave.
Additional Maternity Leave (AML) is the second 26 weeks of maternity leave. This starts on the day after the OML period finishes.
Your employer does not have to offer you the same job when you return from AML if it isn’t practical, but they do have to offer you appropriate similar employment ie on similar terms and conditions.
You do not have to pay back SMP if you lose your job or resign after the 26th week of pregnancy/during your maternity leave. However, if you start a new job during maternity leave your SMP will stop from the week you start that job. You can do self employed work during maternity leave, though, without SMP being affected.
If, for any reason, you are not entitled to SMP, for instance, you work part-time and you do not earn over the £120 a week minimum needed for SMP, you can claim Maternity Allowance (currently £156.66 per week or 90% of your average gross weekly earnings (before tax) whichever is the smaller) via your local JobCentrePlus if you have worked for more than 26 weeks in the 66 weeks leading up to your baby’s due date and have earned at least £30 a week in any 13 weeks in this period. You do not have to have worked the 26 weeks in the same job or continuously and self employed as well as employed work counts. Part weeks count as a full week.
Many mums-to-be get confused because they don’t know whether they are entitled to SMP because they are working on temporary or fixed-term contracts.
Fixed-term or temporary employees are entitled to maternity leave in the same way as permanent employees, but there are some points to remember.
Some employees find that they need to make a claim for SMP after their contract has expired. You can claim SMP in this case as long as you have met the requirement for 26 weeks of continuous service, met the earnings requirement in the qualifying period and were working with that employer from before you got pregnant and after the 26th week of pregnancy.
However, women who aren’t classed as employees but are defined as workers – such as agency workers – will not get SMP, but may be entitled to Maternity Allowance. Guidance from Directgov stipulates that you can claim Maternity Allowance if you’re employed, but not eligible for SMP, you’re registered self-employed and paying Class two National Insurance Contributions (NICs), or hold a Small Earnings Exception certificate or you have recently been employed or self-employed.
Some women fall pregnant whilst they are still on maternity leave. The Trades Union Congress advises that maternity leave in this instance does not break your continuity of employment so your right to maternity leave for the new pregnancy will be based upon your total service with the employer.
You are also eligible for SMP as long as you meet the normal requirements.
You must give the same notice of your intention to take OML as you did the first time, that is by the end of the 15th week before your child is due and you must give your employer the information in writing if they request it.
Once you have given notice of the date that you intend the leave to begin on, you can subsequently change your mind and vary the date.
In this case you must notify your employer of the variation at least 28 days before the new date begins, or if this is not reasonably practicable, as soon as is reasonably practicable.
Be aware that eligibility for SMP is based on your average earnings during the eight weeks leading up to the 26th week of pregnancy so if you are in the unpaid part of your maternity leave you will not be eligible unless you return to work.
The TUC says that it is important that you physically go back into work for a period – even just one day – in order to maintain all of your rights.
Mums will, however, have the same rights as they would have received on returning from AML i.e. the right to return to the same job, or if that is not reasonably practicable, a suitable alternative job on similar terms and conditions.
Some women work two or more roles. In this case you are allowed to claim maternity pay and leave from both employers if you are eligible.
You can get two lots of SMP if you are eligible and begin and end your maternity leave at different times for each job you qualify for SMP from. If you only qualify for SMP from one job, you cannot claim Maternity Allowance (MA) for the second job.
If you do not qualify for SMP from either job, but qualify for MA for the others, you can only get MA from one of your jobs. More information can be found here.
Some employers offer company maternity pay – also known as enhanced or contractual maternity pay – that is better than SMP. Sometimes workers who choose not to return at the end of their maternity leave period are asked by the employer to refund their pay. Some employers stipulate a minimum period you must return for in order to avoid paying back enhanced maternity pay.
The TUC says this is only lawful if it was agreed in advance or specifically stated in a maternity policy. In these cases, you only have to pay back the extra contractual pay, not the SMP part of the maternity pay.
In one Workingmums case study, an employee requested to return to work part-time but was declined and told she had to return full time with the penalty of paying back her enhanced pay if they failed to do so. Advice from our legal expert shows that this can be fair.
It is important to contact an employment expert for specific questions related to maternity pay and case studies provided are given as examples only and need to be checked against current guidance.