Maternity leave is a perennial bugbear for many employers and misconceptions about the legal obligations of employers in this situation abound, but the repercussions for those that fail to adhere to the rules are serious.
Despite outmoded but remarkably prevalent views to the contrary, firms have an important set of legal responsibilities to both mothers and fathers on their payroll. As a result, it is vital that you understand your rights those of new parents.
As an employer you have four main responsibilities to any employee that falls pregnant. You must provide paid time off for your employee to receive antenatal care; you must provide maternity leave; you must offer maternity pay benefits; and you must guarantee protection against unfair dismissal or other discriminatory treatment. All of these responsibilities stand, regardless of whether the individual is a full-time or part-time employee.
In return, the employee must inform you of their pregnancy at least 15 weeks before the beginning of the week in which the due date falls. The only exception is when the employee did not know they were pregnant; in these cases they must inform you as soon as possible.
There is no legal obligation to offer fathers paid time off to accompany their partner to antenatal care appointments. That said, many employees provide time off anyway, and this is recommended in order to maintain good employee relations.
Mothers have a statutory right to 52 weeks maternity leave, regardless of any separate arrangements offered by an employer. This is split into 26 weeks’ Ordinary Maternity Leave and 26 weeks’ Additional Maternity Leave, and is available to all employees regardless of the number of hours they work or the length of their service with the company.
Not all employees are eligible for Statutory Maternity Pay (SMP). In order to qualify, the individual must have been in continuous employment with the same employer for at least 26 weeks at the start of the 15th week before the baby’s due date. They must also have gross average earnings of at least £95 per week.
You must continue to pay at least 90 per cent of your employee’s wage for the first six weeks. The amount you pay is capped for the remaining 33 weeks at £123.06. The employee can choose when their SMP begins, but it is usually payable from the first day of their Ordinary Maternity Leave.
SMP is taxed in the same way as other earnings, and is therefore subject to PAYE and NICs. You must keep a record of when payment began, as well as medical proof of the employee’s pregnancy – normally on form MATB1, available from HM Revenue and Customs.
Fathers-to-be, or partners of pregnant women who will be jointly responsible for bringing up the child, are also entitled to parental leave. These employees are entitled to either one or two weeks’ leave, and this time must be taken in one go; employees cannot take a day here and there.
These employees are also entitled to Statutory Paternity Pay for up to two weeks. You will be required to pay 90 per cent of their salary during this period, capped at £123.06 per week.
When an employee returns after Ordinary Maternity Leave, they are entitled to the same job with the same conditions. To all intents and purposes it should be as if the employee had not left at all. The same rules apply after Additional Maternity Leave, but with a caveat: if it is not ‘reasonably practicable’ for the same job to be offered, you must provide alternative employment. This might occur if, for example, the job performed by the employee no longer exists when they return.
You must also provide any employee with a child aged 16 or under, or a disabled child aged 18 or under, with flexible working patterns where possible. This can only be avoided in situations where this is entirely impractical for clear business reasons.
The government has recently announced changes to the rules on paternity leave. In recognition of the fact that many men play an active role in the early life of their children, it is proposed that fathers should be able to take as much as six months off work, if their partner transfers that portion of their maternity leave.
The changes have sparked the ire of many business groups, and it is far from guaranteed that the proposals will be seen through; if the Conservatives were to win the next election they may choose to delay implementation.
Maternity and paternity leave are a fact of life for employers. While it may be inconvenient to have to grant employees time off, particularly at such a difficult economic time, it is vital that you understand and abide by your legal responsibilities. Where in doubt you should seek independent legal advice from a specialist in employment law.
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22 June 2020 • 9-minute read
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