Employers obligations during pregnancy | Annual leave and maternity

Your employee is legally entitled to take their normal annual leave, whether the statutory minimum of 28 days including bank holidays (pro-rated if they are part-time) or contractual leave, during the period they are still at work.     

Yes, they continue to be legally entitled to annual leave for the period they are on maternity leave. The minimum is 28 days in the year including bank holidays (pro-rated if they are part-time) but their employment contract may provide for longer. 

No, they must not take annual leave and maternity leave at the same time. If they are on annual leave when their baby is born, maternity leave will start on that day and their annual leave will finish. This may give them additional annual leave to take at the end of their maternity leave instead. See: https://www.gov.uk/employers-maternity-pay-leave.

Refusal to allow an employee to take their annual leave they have built up during maternity leave may be pregnancy or maternity discrimination.

You can ask her about when she wants to start her maternity leave, but she may not be able to give you a definite answer if she is only recently pregnant. You must not put pressure on her to give you a definite date before she is legally required to do so.

She must tell you when she wants to start her maternity leave 15 weeks before the date she is due to give birth. 

You can ask your employee:

  • How she is feeling, as this may be necessary to consider any health and safety risks or other work adjustments, for example to the hours she works.
  • When she is likely to start her maternity leave and how long she is likely to take; but you should not pressure her to make a firm decision before she is ready.
  • When she wants to take annual leave.
  • When to hold a performance review if this is due to be held during her maternity leave.

In the 15th week before the baby is due (that is when she is about six months pregnant) she must tell you:

  • that she is pregnant
  • the week she expects to give birth (expected week of childbirth), and
  • when she intends to start her maternity leave, which cannot be before the beginning of the 11th week before the week she expects to give birth.

After your employee has told you the date she wants to start her maternity leave you must write to your employee, within 28 days, confirming her start and end dates. The end date will be 52 weeks after the start of her maternity leave unless she wants to return earlier. If your employee is on maternity leave and decides to return before that date, she must give you eight weeks’ notice see https://www.gov.uk/employers-maternity-pay-leave.   

Yes, she can change the date she wants her maternity leave to start, but she must tell you 28 days before that date. You should then give her the new date when her maternity leave will start and end.

You can not remove a pregnant employee from her job unless she agrees. To change an employee’s job because she is pregnant, and not for a health and safety reason, or by agreement with her, is likely to be pregnancy discrimination.

It is not for you as the employer to decide what is good or bad for a pregnant employee. If you have any specific concerns about your employee’s health you can ask how she is and if there is anything she would like you to do. If you remove responsibilities from her because she is pregnant this could be pregnancy discrimination unless you remove them to avoid a health and safety risk or she agrees to having duties removed.

This will largely depend on the job involved and when the employee wants to go on maternity leave. It is good practice for the handover to take place in good time but you must not remove your employee’s responsibilities before it is necessary for the handover – this could be pregnancy discrimination.

You can ask if she has any thoughts of how long she wants to take off, but you cannot put any pressure on her to make an early decision before she is ready. You should assume that she will return to work after 52 weeks unless she gives you notice that she wants to return earlier. 

You will need to assess your business needs. Possible options are:

  • Recruiting a temporary replacement (maternity cover).
  • Temporarily rearranging your business so that her role is performed by existing members of staff.
  • Recruiting a permanent employee to cover the role for the maternity period, but making it clear that the woman on leave can return to that role after her leave. 

Yes, but you must not do so with a view to the maternity cover taking over the pregnant employee’s responsibilities on a permanent basis.  A pregnant employee is usually entitled to return to the same job after her maternity leave. Similar rules apply to returning from adoption leave and shared parental leave.

Yes. You must not treat her unfavourably because she is pregnant. If you treat her unfavourably or prevent her from returning to work, this would be pregnancy discrimination.

She is entitled to a further period of maternity leave and she may qualify for statutory maternity pay (SMP) or any contractual maternity pay for her next baby if she meets the normal qualifying conditions. You must calculate her entitlement to SMP. If she is not entitled to this you must give her form SMP1 so that she can claim maternity allowance.

Most or all SMP you pay can be reclaimed from HM Revenue & Customs.

All employers can reclaim 92% SMP. Small employers can recover 103% of the amount they pay. Small employers are those whose National Insurance contributions are not more than £45,000 per annum.

Last updated: 12 May 2016