Providing maternity leave and pay

This information guides you through your employees’ entitlements to maternity leave and pay and your entitlement to claim back statutory maternity pay from HMRC.

All pregnant employees are entitled to 52 weeks Statutory Maternity Leave.
Pregnant women who satisfy eligibility criteria are entitled to 39 weeks’ Statutory Maternity Pay (SMP). SMP paid by the employer and reimbursed by HM Revenue and Customs. It is paid at 90% of average earnings for the first six weeks. The remaining 33 weeks are paid at £112.75 per week (or 90% of average earnings if that is less).
During the first six months of Statutory Maternity Leave, an employee’s terms and conditions of employment continue as if she were still at work, apart from the right to remuneration.
A woman on maternity leave is protected against suffering a detriment in the workplace (including being dismissed) for a reason relating to her maternity leave.
It is a good idea to meet with the employee soon after she informs her employer of her pregnancy and to meet with her regularly throughout the pregnancy.
It is a good idea to meet with the employee prior to her departure on maternity leave to discuss with her her rights and entitlements during leave, the possibility of flexible working on her return and to agree with her the level of contact she would like with her employer during her absence.
An employee may, by agreement with their employer, undertake up to 10 days work under their contract of employment during their Statutory Maternity Leave.

Please note that the law has changed from April 2007. The information provided is the most up-to-date pre-April 2007.

Maternity leave - the law
Notification by the Employee
Statutory Maternity Pay (SMP)
Premature Birth
Relevant Legislation
What is the expected week of childbirth (EWC) and how is it worked out?
How do I work out the 15th week before the EWC (the “qualifying week”)?
What is the calculation period for Statutory Maternity Pay and how are average earnings calculated?
Statutory Maternity Pay Calculator

Maternity leave - the law

Compulsory Maternity Leave

Childbirth is followed immediately by a period of compulsory maternity leave during which an employee is not permitted to return to work. The compulsory maternity leave period is four weeks for women working in factories and two weeks for all other women, unless a statutory requirement exists to the contrary.

Ordinary Maternity Leave and Additional Maternity Leave

All pregnant employees are entitled to 26 weeks’ Ordinary Maternity Leave (OML), which includes the period of compulsory maternity leave and 26 weeks’ Additional Maternity Leave (AML). AML follows on immediately from OML. The 52 week leave period is known as Statutory Maternity Leave.

Start of Maternity Leave

Except where the start of an employee’s maternity leave is triggered early, it is up to the employee to choose when she would like her Statutory Maternity Leave to start. The earliest an employee can choose to start her Statutory Maternity Leave is 11 weeks before the EWC.

The start of an employee’s maternity leave may be triggered automatically if the employee’s child is born prematurely (see below) or if an employee is absent for a pregnancy-related reason during the four weeks up to the EWC. See managing sickness for more information.

Entitlements During Maternity Leave

During the first six months of leave, or Ordinary Maternity Leave (OML), an employee’s terms and conditions of employment continue as if she were still at work, apart from the right to remuneration. Examples of contractual terms and conditions from which an employee should continue to benefit during OML include the right to participate in share schemes, the right to use a company car or mobile phone (unless these are provided for business purposes only) and the reimbursement of professional subscriptions.

It is not always clear what falls within the definition of “remuneration”. For example, it is not always clear whether car allowances, mortgage subsidies, commission or bonuses should continue to be paid during OML.

See our legal section for more information.

Only certain contractual provisions continue throughout the second six months of leave or Additional Maternity Leave (AML). For more information for England and Wales here, or for Scotland here. An employer may decide to offer more generous provisions during AML, such as offering the same terms and conditions which apply during OML.

An employee continues to accrue annual leave during her maternity leave. During OML, annual leave accrues in the same way and at the same rate as if the employee was at work. During AML, an employee accrues only her statutory holiday entitlement. Annual leave entitlement may be lost if it is not taken in the leave year in which it accrues. Annual leave cannot be taken during maternity leave. Read more information on annual leave in England and Wales and Scotland.

The time spent on OML and AML will count towards an employee’s period of continuous employment for the purpose of assessing statutory employment rights, such as entitlement to Statutory Redundancy Pay.

The period of OML counts as continuous service for the purpose of assessing seniority, pension rights and other personal length-of-service payments, such as pay increments, under the contract of employment. The AML period does not count for this purpose, unless the employee’s contract of employment provides for this.

Contact During Maternity Leave

During the maternity leave period, an employer may make reasonable contact with an employee. The frequency and nature of the contact will depend on a number of factors including the employee’s post, what has been agreed and what important information arises. Employers must in any event keep employees informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was working. What constitutes “reasonable” will depend on the circumstances and the employee.

“Keeping In Touch” Days

Employees may, by agreement with their employer, undertake up to 10 days’ work under their contract of employment during maternity leave. “Keeping In Touch” days may be worked at any time during maternity leave except during the compulsory maternity leave period. Any work done on any day during the maternity leave period will count as a whole day towards the 10-day limit. The type of work that the employee undertakes is a matter for agreement between employer and employee. They may be used for any activity which would ordinarily be classed as work under the employee’s contract of employment.

An employee is entitled to be paid for “Keeping In Touch” days. The rate of pay is a matter for agreement with the employer, and may be set out in the employment contract or agreed on a case-by-case basis. If the employee is receiving SMP, she should continue to receive SMP and the employer may count the amount of SMP paid towards the contractual pay agreed by the two parties. The employer will be able to recover SMP in the normal way.

Notification by the Employee

To qualify for maternity leave, an employee must notify her employer of her intention to take maternity leave by or during the 15th week before the EWC or as soon as reasonably practicable thereafter. She must notify her employer of the fact that she is pregnant, the EWC and the date she would like to start her Statutory Maternity Leave. If requested by her employer to do so, the notice should be in writing and the employee should provide her employer with medical evidence of the EWC. Such medical evidence is usually given in the form of the MAT B1 certificate given to the employee by her midwife or doctor when she is about 20 weeks pregnant.

An employee must give 28 days' notice if she wishes to change the start date of her maternity leave.

Notification requirements differ where the start of an employee’s maternity leave is triggered automatically.

Once notification has been received, an employer must write to the employee within 28 days stating the date on which her maternity leave is expected to end. The employer should assume for these purposes that the employee will take the full 52 weeks leave.

Statutory Maternity Pay (SMP)

SMP is paid for 39 weeks. It is paid by the employer and reimbursed by HM Revenue and Customs.

The 15th week before the EWC is known as the “qualifying week”. Both the qualifying week and the EWC start on a Sunday. To be eligible for SMP, an employee must have at least 26 weeks’ continuous service with her employer by the end of the qualifying week, be employed by that employer in the qualifying week and have average earnings of at least £87 per week during the “calculation period”. The calculation period is the eight-week period up to and including the qualifying week.

Continuous service includes any week in which the employee has a contract of employment with her employer and will include time when an employee is on sick leave, on holiday or taking unpaid leave.

If an employee’s pay is reduced during the calculation period she may no longer be eligible to receive SMP as she may not have sufficient average earnings. This may happen, for example, where she receives only Statutory Sick Pay during the calculation period, or if she takes some form of unpaid leave.

SMP is paid at 90% of average earnings for the first six weeks. The remaining 33 weeks are paid at £112.75 per week (or 90% of average earnings if that is less). Tax and National Insurance contributions are deducted. If an employee receives a pay rise at any time during the period from the start of the calculation period to the end of her maternity leave, the amount of SMP she receives or has already received must be adjusted to reflect the increase in pay.

Start of SMP

Except where the start of an employee’s maternity leave is triggered early, it is up to the employee to decide when she would like her SMP to start. The earliest an employee can chose to start her SMP is 11 weeks before the EWC.

An employee may choose to start her SMP on the same day as her Statutory Maternity Leave.

Notification for SMP

To claim SMP, an employee must give her employer 28 days’ notice of the date she wishes SMP to start. The notification time limit can be extended but only where it was not reasonably practicable for notice to have been given earlier.

The employee must also give her employer medical evidence of when her baby is due. The content of the medical evidence is prescribed by law. Medical evidence is usually provided by the employee in the form of the MAT B1 certificate. An employer cannot pay SMP until the medical evidence has been received.

Repayment of SMP

An employee does not have to repay SMP if she does not return to work after maternity leave. Different rules may apply to the repayment of contractual maternity pay, which will depend on the specific terms and conditions of that payment.

Resignation

Once an employee satisfies the qualifying conditions for SMP, SMP is payable by her employer even if the employee subsequently resigns, is dismissed or advises her employer that she will not be returning to work from maternity leave. If this occurs prior to the start of maternity leave, payment of SMP may be triggered early.

If the employee goes to work for a different employer, different rules apply.

Procedure When the Woman is Not Entitled to SMP

If an employer believes that an employee is not entitled to SMP, it should complete form SMP1 stating why it believes the employee is not entitled to SMP and give the completed form to the employee, together with her MAT B1 certificate. The employee may then be able to claim Maternity Allowance or Incapacity Benefit through JobCentre Plus.

Premature Birth

An employee whose baby is born prematurely is entitled to statutory maternity leave and SMP in the same way as any other employee.

If an employee’s baby is born while she is on maternity leave and receiving SMP, no action needs to be taken by the employee and her entitlements continue as before the birth.

If the baby is born before the employee has started her maternity leave or SMP, special notification rules apply. The employee must notify her employer as soon as practicable after the birth that she has given birth and the date of the birth. The notice must be in writing if requested by the employer. To claim SMP, the employee must also provide her employer with medical evidence of the EWC (usually in the form of the MAT B1 certificate) and evidence of the date the baby was actually born.

If the employee has already given notice for her SMP to start but it is to start early because of the premature birth, she must also let her employer know (in writing if the employer so requests it) the date her absence began.

Notice for SMP must be given within 21 days of the birth or as soon as reasonably practicable thereafter. The SMP period will start on the day following the date of the birth.

Maternity leave will start on the day after the date of birth, even if this is before the 11th week before the EWC.

Attendance at the Birth

Eligible employees, for example the mother’s partner (including same sex partner) or husband, may be able to take Statutory Paternity Leave in order to attend the birth of the child. See the Paternity Leave and Pay section of this toolkit for more information.

Parental Leave or Time Off For Dependants may also be taken for this purpose. See the Parental Leave and Time Off For Dependants section of this toolkit for more information.

Unfair Treatment and Leave

A woman must not be dismissed or subjected to less favourable treatment for a reason related to her maternity leave. A woman on maternity leave has "protected status". She does not need to compare the treatment she receives with the treatment of others in order to establish sex discrimination. This right applies regardless of the employee’s length of service. See our adviser section for more info.

An employee must not be dismissed because of her pregnancy or the fact that she has given birth. She must also not be dismissed because she has taken or seeks to take maternity leave, or because she has or intends to avail herself of any of the benefits of OML. If dismissed for such a reason, an employee may have an unfair dismissal claim. This applies irrespective of the employee’s length of service.

An employee must not suffer a detriment or be dismissed for not agreeing to work ‘Keeping In Touch’ days or for working or considering such work.

An employee must not be subjected to a detriment because of her pregnancy or the fact that she has given birth. She must also not suffer a detriment because she has taken or seeks to take maternity leave, or because she has or intends to avail herself of any of the benefits of OML. This right applies regardless of the employee’s length of service.

An employee’s long-term position at work must not be affected by her absence on maternity leave. For example, she must not be treated any less favourably in terms of promotion prospects, pay reviews, appraisals, dismissal and consultation in relation to redundancy.

Relevant Legislation

Sex Discrimination Act 1975
Employment Rights Act 1996
Working Time Regulations 1998
Employment Relations Act 1999
Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2006
Employment Act 2002
Work and Families Act 2006
Maternity and Parental leave etc Regulations 1999
Social Security Contributions and Benefits Act 1992
Statutory Maternity Pay (General) Regulations 1986
Statutory Maternity Pay, Social Security (Maternity Allowance) and Social Security (Overlapping Benefits) (Amendment) Regulations 2006

Please note that some of the legislation listed above has been amended since it originally came into force. You must ensure, therefore, that you refer to the most recent version.

What is the expected week of childbirth (EWC) and how is it worked out?

The EWC is the week in which the baby is due. It starts on a Sunday. It is different from the actual week of childbirth. The EWC will be given on the MAT B1 certificate issued to the woman by her midwife or doctor when she is about 20 week pregnant.

More information on the expected week of birth is available in our for advisers section.

How do I work out the 15th week before the EWC (the “qualifying week”)?

To work out the qualifying week you should identify the Sunday at the start of the EWC and count back 15 Sundays from there. That is the first day of the qualifying week, which starts on a Sunday.

The qualifying week can also be worked out by using tables published by HM Revenue and Customs. You can access the tables here. It is strongly recommended that employers use the tables to work out relevant dates.

If you are unsure as to a relevant date for Statutory Maternity Pay purposes, you should contact HM Revenue and Customs on 0845 7143 143.

What is the calculation period for Statutory Maternity Pay and how are average earnings calculated?

Average earnings are calculated by reference to pay received in the calculation period. The calculation period is the eight-week period up to and including the qualifying week. Pay taken into account is any pay on which National Insurance contributions are payable. For example sick pay, overtime, retrospective pay awards and holiday pay will all need to be included.

For weekly paid employees, average weekly earnings are calculated by reference to the eight pay days up to and including the last pay day before the end of the qualifying week. To work out average earnings, employers should add together the pay received in those eight pay days and divide by eight.

If the employee is paid monthly, average weekly earnings are calculated by adding together the earnings received on the last normal monthly pay day before the end of the qualifying week and any earnings received after the last normal payday at least eight weeks before that. That figure should then be divided by the number of months’ earnings it covers, multiplied by 12 and then divided by 52. For most women, the relevant payments will simply be the last two monthly payments received by the end of the qualifying week.

For more information, see TIGER guidance on calculating SMP.

Statutory Maternity Pay Calculator

HM Revenue and Customs has on its website an SMP calculator to assist with SMP calculations. Click here to access the calculator.

Calculators in CD ROM format can be obtained from HM Revenue and Customs.

Claiming back Statutory Maternity Pay/Record Keeping

The amount which employers pay by way of SMP can be deducted from any PAYE tax, student loans, National Insurance contributions and Construction Industry Scheme deductions which it pays to HM Revenue and Customs.

Small Employers’ Relief

The amount and employer can deduct depends on whether it is entitled to Small Employers’ Relief. If an employer is entitled to Small Employers’ Relief, it can deduct 104.5% of the SMP it has paid to employees. If it is not entitled to such relief, it can deduct 92% of the SMP it pays.

Small Employer’s Relief is available to employers whose gross employers' and employees' Class 1 National Insurance contributions for the last complete tax year before the woman’s qualifying week were £45,000 or less.

Advance Payment

Employers may also apply to HM Revenue and Customs for an advance payment in respect of SMP.

For more information on how much an employer can get back in respect of the SMP it has paid, click here. Employers can also call HM Revenue and Customs on 0845 7143 143.

It is obligatory for employers to keep certain records for three years after the end of the tax year in which the employee ended her maternity pay period.