What are my rights if I'm having a baby?
If you are an employee and are having a baby, you are allowed to take time off to have the baby and for a period after the birth. You are entitled to take this leave no matter how long you have been working for that employer. There are also rules on your right to go back to your job after you have had your child.
Your employers may offer their own maternity package as part of your contract. This can be more generous than the one you are entitled to by law.
You can also have ‘parental leave’ to look after your children when they are young.
Pregnant employees must be given paid time off to go to appointments for antenatal care. This can include relaxation classes as well as medical check-ups, as long as the appointment has been made on the advice of a doctor, midwife or health visitor.
If your employer asks, you must show a certificate confirming you are pregnant, and proof of any appointments except for your first antenatal appointment. During your time off, you should be paid at your normal rate. If your employer refuses this time off without good reason, or refuses to pay you for the time off, you can complain to an employment tribunal.
You can take a total of 52 weeks’ maternity leave. The first 26 weeks is ‘ordinary maternity leave’ (OML). Anything after that is ‘additional maternity leave’ (AML).
To take OML, you must:
- tell your employer you intend to take OML no later than the end of the 15th week before your child is due (the week your child is due is your ‘expected week of childbirth’ or EWC); and
- inform your employer of the date on which you want to start your OML – normally any date from the beginning of the 11th week before your EWC (but not earlier).
If you give birth earlier than expected, your OML will also start earlier. If possible, you should give your employer 28 days’ notice of a change to the date of starting OML.
Within 28 days of you telling your employer when you want to take OML, your employer must write to you to confirm the date when they expect you to return to work.
There is also a period known as compulsory maternity leave (CML). This is the two weeks after your child is born, during which you are not allowed to return to work. But this is normally counted as part of OML, rather than additional to it.
You will be entitled to Statutory Maternity Pay (SMP) from your employer if:
- you have been employed by them for at least 26 weeks at the end of the 15th week (known as the ‘qualifying week’) before the EWC; and
- you have been earning at least enough to pay national insurance contributions during the eight weeks up to and including the qualifying week. (Currently, this is an average of £109 a week before tax.)
You must give at least 28 days’ notice to your employer of the date you want to start receiving SMP. (You would normally do this at the same time as you tell them about OML.)
SMP is paid for 39 weeks, currently at the following rates:
- for the first six weeks, you will get 90 per cent of your average gross (before-tax) weekly earnings, with no upper limits; and
- for the remaining 33 weeks, you will get £136.78 a week if you normally earn £136.78 or more per week before tax. If you normally earn less than this, you will get 90 per cent of your average weekly earnings a week (though this rate is reviewed each year).
If you cannot get SMP, you may be able to get Maternity Allowance (MA) if you are expecting a child or have just given birth and:
- you have been employed or self-employed for 26 weeks in the 66 weeks before your baby is due; and
- you earn on average at least £30 a week.
MA can be paid for up to 39 weeks. MA can start from the 11th week before your baby is due.
The two rates of MA are currently:
- £136.78 per week (the ‘standard rate’); or
- 90 per cent of your average weekly earnings if these are less than £136.78.
If you can’t get SMP or MA, you may be able to claim Incapacity Benefit or Income Support and possibly a Sure Start Maternity Grant. For information about how these work, and how to apply for them, contact your local Benefits Agency office, which is listed in the phone book. Alternatively, visit the Department for Work and Pensions website (see ‘Further help’ on page 38).
During OML and AML you are still classed as an employee and you have the right to the same terms and conditions as when you were working. This means:
- you have the same legal rights;
- you are protected from unfair dismissal;
- you keep your right to a redundancy payment;
- you are entitled to have disciplinary and grievance procedures followed; and
- the period of your maternity leave will count towards seniority, pensionable service and other benefits based on your time with your employer (‘length-of-service’ benefits).
If you return to work at the end of your maternity leave, you also have a right to any improvements in the terms and conditions that happened while you were away.
If you return to work after OML, you can return to the same job you were doing before you went on maternity leave.
If you return to work after AML, you are entitled to return to your old job if it is reasonably practicable to do so. If this is not possible, you are entitled to a different job which is suitable and appropriate, but your terms and conditions should remain the same.
You don’t need to tell your employer that you want to return to work after OML or AML unless you want to return early. In this case you must give your employer eight weeks’ notice.
Normally, you will lose one week’s SMP for each week or part of a week that you work for your employer while they are paying you SMP. However, you can work for up to 10 days, called ‘keeping in touch’ days, without losing SMP.
If you decide not to return to work after OML or AML, you must give your employer the same notice that you would if you were leaving for any other reason. If you qualify for SMP, you will stay on the payroll until your entitlement ends. After that, you will receive a P45. If you are not getting SMP, your employment will finish at the end of the contractual notice period or the end of your maternity leave, whichever comes first.
Some employers who pay contractual maternity pay require you to repay it if you do not return to work.
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- Bringing a claim for unfair dismissal
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- Bringing a claim for wrongful dismissal
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- Further help with employment law
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