You must pay SMP to all employees who qualify. The employee has to have been employed for 26 weeks by the 15th week before the week in which the baby is due and earn a minimum amount. See: https://www.gov.uk/maternity-pay-leave/overview.
SMP is 90% of the woman's pay for the first six weeks of maternity leave, then a flat rate of £138.18 (as at February 2015) for the following 33 weeks. Once an employee qualifies for SMP, it is payable for the full 39 weeks even if her employment ends before then. https://www.gov.uk/maternity-pay-leave/overview
Yes. All employers can reclaim some or all of the SMP they pay. 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. Other employers can claim 92% of the amount paid. For full details and model letters see Toolkit and: GOV.UK
Yes. You must not treat an employee unfavourably because you have to pay her SMP, however inconvenient this is. Remember you can claim it back from the government.
You must pay statutory maternity pay (SMP) for the full 39 weeks even if your employee is not going to return to work. It doesn't matter whether you dismiss her or she resigns. You cannot ask her to repay SMP.
For circumstances that affect payment of SMP, including where the employee works for another employer or gets a pay rise, see: https://www.gov.uk/statutory-maternity-pay-employee-circumstances-that-affect-payment#employee-isnt-returning-to-work
If I pay contractual maternity pay over and above statutory maternity pay (SMP), can I recover it if the employee resigns?
It depends what your contract of employment with the employee says. If it says that she must pay back the contractual maternity pay if she does not return to work or remain in work for a minimum period after her return from maternity leave then you are entitled to reclaim the amount you paid over and above SMP. You may not be able to rely on the contract to claim repayment if you have broken the contract yourself, for example by discriminating against the employee.
An employee only has to pay back contractual maternity pay if her contract says that she should pay it back if she is made redundant.
Many employers do not enforce repayment of contractual maternity pay when an employee is made redundant but that is a matter for negotiation.
Yes, you do have to give a pay rise to w woman on maternity leave if she would have received a pay rise if she was working. Any pay rise should be incorporated into any earnings related statutory or contractual maternity pay.
For example, if a woman on maternity leave is receiving contractual maternity pay, based on her salary and, at an annual pay review, staff are awarded a two per cent pay rise, failure to include this in a woman’s contractual maternity pay would be unlawful discrimination. Her contractual maternity pay should be recalculated so it is based on her salary plus the two per cent increase.
An employee on maternity leave entitled is not usually, except for the compulsory maternity leave period, but it may depend on the type of bonus. She should be paid a bonus relating to work done prior to maternity leave and this should be paid at the same time it is paid to other employees.
There may be some situations where all employees are given a discretionary bonus irrespective of the work they have done, for example, a discretionary loyalty bonus. In these circumstances, a woman on maternity leave may argue that she should receive this. The legal position is not clear and will depend on the facts of each case so you should seek legal advice about your employee's entitlement.
Yes, you must continue paying towards the employee’s pension during her maternity leave for at least the paid part of maternity leave. The employer’s contributions are usually based on the employee’s normal salary when working. The employee’s contributions are based on her actual income during maternity leave, that is statutory or contractual maternity pay.
If the employee has made a salary sacrifice in relation to childcare vouchers what happens during maternity leave?
The law is unclear whether an employee on maternity leave should continue to receive childcare vouchers. It is arguable that, as they cannot be converted into cash, they should be maintained like any other non-cash contractual benefit.
No, she is not entitled to sick pay during maternity leave. Once she has returned to work she will be entitled to sick pay in the same way as any other employee.
Yes, you must offer training to an employee on maternity leave if it is available to other employees, particularly if the employee would be disadvantaged by being excluded from training. The European court has held that where a woman on maternity leave is excluded from a training course because she is on maternity leave, and this disadvantages her in relation to her career or pay, this would be maternity discrimination. You could agree with the employee to provide her with alternative training. It is good practice to discuss this with your employee.
What if an employee on maternity leave chooses not to attend training and so loses out on promotion?
An employee does not have to attend training during maternity leave if she chooses not to. It would be advisable to provide the training to her as soon as possible after her return from maternity leave so that she is not disadvantaged.
Last updated: 20 Feb 2017