• All pregnant employees are entitled to 52 weeks maternity leave.
• All employees must take Compulsory Maternity Leave of two weeks immediately after the birth (or four weeks if they work in a factory).
• Pregnant women who satisfy the relevant qualifying conditions 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 £172.48 per week (April 2023-2024) or 90% of average earnings if lower.
• An employee can end maternity leave/SMP early and take up to 50 weeks’ Shared Parental Leave (SPL) and up to 37 weeks’ Statutory Shared Parental Pay (ShPP) and/or transfer any untaken maternity leave and pay to her partner.
• During maternity leave, an employee’s terms and conditions of employment continue as if she were still at work, apart from the right to ‘remuneration’ (earnings).
• You can keep in reasonable contact with your employee during maternity leave.
• An employee may work for up to 10 days during her maternity leave without bringing her leave or pay to an end. These are called Keeping In Touch (KIT) days. You do not have to offer KIT days and your employee does not have to agree to them.
• An employee is protected against unfair treatment, redundancy and dismissal for a reason relating to her pregnancy and maternity leave.
Who can take Maternity Leave and Pay?
This guidance applies to all new and expectant mothers during pregnancy and following childbirth. These are health and safety rights that apply to workers and employees who meet the qualifying conditions set out below.
• 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. This is a public health measure and an employer can be fined for allowing a woman to work during this period.
• 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 giving all employees a maximum of 52 weeks’ maternity leave.
An employee is not required to state how much maternity leave she will take or whether she intends to return to work. An employer should assume that she will take 52 weeks’ maternity leave unless she gives notice to return to work earlier.
Start of Maternity Leave and SMP
Except where the start of an employee’s maternity leave and pay is triggered early, it is up to the employee to choose when she would like her maternity leave to start. The earliest an employee can choose to start her maternity leave is 11 weeks before the Expected Week of Childbirth (EWC).
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.
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. This includes where an employee is suspended from work for health and safety reasons or is off sick with a pregnancy-related illness. Maternity leave and pay can start from the day after the first day of absence if this is within the four weeks before her EWC but not before. You can ignore odd days of illness if you wish to.
Notification for Maternity Leave and Pay
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 Expected Week of Childbirth (EWC) or as soon as reasonably possible thereafter. She must notify her employer of the fact that she is pregnant, the EWC and the date she would like to start her maternity leave. If requested by her employer to do so, the notice should be in writing.
In order to claim SMP the employee must provide her employer with medical evidence of the EWC. Such medical evidence is usually given in the form of the MATB1 maternity certificate given to the employee by her midwife or doctor when she is about 20 weeks pregnant (it is not available before 20 weeks). Notice for SMP must be given at least 28 days before the start of the SMP period or as soon as reasonably possible afterwards. The MATB1 maternity certificate must be given within 21 days of the start of the SMP period or within 13 weeks at the latest.
An employee must give 28 days’ notice if she wishes to change the start date of her maternity leave.
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 that the employee will take the full 52 weeks’ maternity leave. If the employee wants to return to work earlier, she must give at least 8 weeks’ notice.
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”. 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.
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 £123 per week (April 2023-April 2024) 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 £172.48 per week (April 2023-April 2024) or 90% of average earnings if lower. Tax and National Insurance contributions are deducted.
• Pay Rises during the Maternity Leave period
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.
• Repayment of SMP
An employee does not have to repay SMP if she does not return to work after maternity leave.
The employer can set your own terms and conditions in respect of repayment of any contractual maternity pay which you provide over and above the SMP amount. The employer can only ask for contractual maternity pay to be repaid if it was a condition of the contract or was clearly agreed with the employee before the start of her maternity leave.
• Resignation or termination of contract
Once an employee satisfies the qualifying conditions for SMP, SMP is payable by her employer even if the employee subsequently resigns, is dismissed or made redundant, her contract ends or she advises her employer that she will not be returning to work from maternity leave.
If her employment ends prior to the start of maternity leave, payment of SMP will start from the 11th week before the expected week of childbirth or from the date of termination if later.
If an employee’s contract is terminated ‘solely or mainly’ to avoid payment of SMP, an employee can ask HMRC for a formal decision on her entitlement to SMP.
• Working for another employer during the SMP period
If your employee has more than one job, she may qualify for SMP if she meets the qualifying conditions in each job. She can start and finish her maternity leave and SMP at different times in each job.
If your employee does not qualify for SMP in one job, but was employed in that job in the qualifying week, she can continue to work in that job both before and after the birth (apart from the compulsory maternity leave period) and this will not affect her SMP.
If your employee starts work for a new employer after the birth, who did not employ her in the qualifying week, she cannot continue to receive SMP. She must tell her employer to stop paying her SMP from the date on which she started work. An employer can ask her to repay any SMP that has already been paid from that date.
Self-employment or working for a new employer before the birth, will not affect her entitlement to SMP. An employee must comply with any contractual terms about taking on other employment while they are employed by you. These will continue to apply during maternity leave.
• Procedure When the Employee is Not Entitled to SMP
If an employee has not met the qualifying conditions for SMP, the employer must complete form SMP1 stating why she has not qualified and give the completed form to the employee, together with her MAT B1 certificate.
The SMP1 form is available here.
The employee may then be able to claim Maternity Allowance or Employment and Support Allowance from the JobCentre Plus.
Working out the Expected Week of Childbirth (EWC)
To work out the qualifying week you should identify the Sunday at the start of the week in which the baby is due (or the due date if it’s a Sunday) 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 the SMP calculator on gov.uk.
You should always use the due date on the MATB1 maternity certificate, not the date of birth.
Calculating average earnings for Statutory Maternity Pay (SMP)
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.
Claiming SMP from HM Revenue and Customs
The amount which employers pay by way of SMP can be deducted from payments to HM Revenue and Customs for any PAYE tax, student loans and National Insurance contributions.
Small Employers’ Relief
The amount an employer can deduct depends on whether you are entitled to Small Employers’ Relief. If you are entitled to Small Employers’ Relief, you can deduct 103% of the SMP (and other statutory parental payments) you have paid to your employees. If not, you can deduct 92% of the SMP you pay.
Small Employer’s Relief is available to employers if your Class 1 National Insurance contributions for the last complete tax year before the qualifying week were £45,000 or less. You can deduct your statutory payments from your PAYE and National Insurance liabilities.
Employers may also apply to HM Revenue and Customs for an advance payment in respect of SMP if you will find it difficult to pay.
Employers can also call HM Revenue and Customs SMP Helpline on 0300 200 3500 for help with paying and reclaiming SMP.
It is obligatory for employers to keep records for three years after the end of the tax year in which the employee ended her maternity pay period.
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, the employee must notify her employer as soon as possible 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), if she has not already done so, and evidence of the date the baby was actually born. The MATB1 maternity certificate must be given within 13 weeks from the start of the SMP period at the latest.
If the employee has already given notice for her maternity leave and pay but she gives birth before her leave has started, she must let her employer know (in writing if the employer so requests it) the date on which she gave birth.
Maternity leave and SMP will start on the day after the date of birth if it hasn’t already started, even if this is before the 11th week before the EWC where the baby was born prematurely.
An employee’s average weekly earnings will be based on her earnings in the 8 weeks immediately before the week in which her baby was born where she gives birth before the qualifying week.
Entitlements during Maternity Leave
An employee’s terms and conditions of employment continue as if she were still at work, apart from the right to remuneration, throughout her OML and AML. Examples of contractual terms and conditions from which an employee should continue to benefit include the right to participate in share schemes, health insurance, childcare vouchers, gym membership, the right to use a company car or mobile phone (unless these are provided for business use 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 maternity leave.
An employee continues to accrue annual leave during her maternity leave and the employer should apply their normal rules on taking and carrying forward annual leave. It is important to meet with the employee as early as possible in her pregnancy to discuss her annual leave and when she plans to take it. If an employee has not been able to take her statutory minimum of 28 days paid holiday (pro rata for part-time employees) because of maternity leave, she must be allowed to carry it forward.
An employee is entitled to continue to receive her normal pension contributions during OML and any further period of paid leave. The employer should continue to pay pension contributions during the 39 week SMP period or any further period of contractual maternity pay. If the employee contributes to her pension, her contributions should be based on the maternity pay she actually receives.
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. Maternity leave 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.
Reasonable 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.
Keeping In Touch (KIT) Days
Employees may, by agreement with their employer, undertake up to 10 days’ work under their contract of employment during maternity leave without bringing the maternity leave period to an end or losing her SMP. KIT 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 KIT days in the week/month in which the work is carried out. 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. However, you will need to bear in mind your statutory obligations relating to equal pay and the National Minimum Wage.
If the employee is receiving SMP, she should continue to receive it. An employer can recover SMP in the normal way. An employer may offset the amount of SMP paid towards the contractual pay agreed by the two parties but you should make this clear to your employee if you intend to do this.
Protection from Dismissal, Redundancy and Unfair Treatment
An employee must not be dismissed, made redundant or subjected to unfavourable or detrimental treatment because of her pregnancy or the fact that she has given birth or that she intends to take, is taking or has taken maternity leave. This right applies regardless of the employee’s length of service. A woman has a ‘protected period’ during pregnancy and maternity leave in which she is protected against discrimination because of pregnancy or maternity leave.
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.
An employee must not suffer a detriment or be dismissed for not agreeing to work KIT days or for asking for such work.
An employee has the right to be offered a suitable alternative vacancy, if one is available, if her job is at risk of redundancy during maternity leave.
Good Practice: Occupational Maternity Pay
It is good practice to consider whether you can offer maternity pay over and above the statutory minimum. Any contractual pay can top up the SMP which is reclaimed from HMRC.
You can make it a term of the employee’s contract that any occupational maternity pay (over and above the SMP element) is to be repaid if the employee does not return to work for a reasonable period.
Any such clause must be agreed with the employee and should be included in your policies e.g. Maternity policy and Paternity Policy. An employee should be allowed to repay any occupational maternity pay in reasonable and affordable instalments if they are unable to return to work.
An employee is ‘back at work’ once their maternity leave period has ended, even if they are on sick leave, annual leave or unpaid leave or have reduced or changed their hours of work.
A model maternity policy is part of this toolkit.
Maternity pay calculator
• Public Health Act 1936, s.205
• Statutory Maternity Pay (General) Regulations 1986
• Social Security Contributions and Benefits Act 1992
• Employment Rights Act 1996
• Working Time Regulations 1998
• Maternity and Parental Leave etc Regulations 1999
• Equality Act 2010
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.