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Maternity & Paternity
Published 1 September 10
All pregnant employees - those working under a contract of employment - are legally entitled to up to 52 weeks of Statutory Maternity Leave (SML) around the birth of their child. There is no length-of-service qualification for this entitlement. Pregnant employees also have a right to paid time off for antenatal appointments.
The rules and regulations for maternity leave are comprehensive and detailed, and pregnant workers have significant rights with regards to the choice of the date for the start of maternity leave. Employer and employee have well-defined obligations, and it is important for an employer to act fairly and promptly to any information provided by the employee, such as the expected date of birth, the intended start date of statutory leave and the intention to claim Statutory Maternity Pay, so that legal obligations are met.
It is important not to prejudice an employee on grounds of her pregnancy. If an employee believes she has been treated badly or dismissed under these circumstances, she can take a claim of sex discrimination to an employment tribunal. Similarly, pregnant workers must be handled fairly where redundancies are being made.
An employee has a right by law to continue to benefit from all the terms and conditions of her employment which would have applied to her had she been at work, the only exceptions being terms relating to wages. However, she must be paid Statutory Maternity Pay if eligible and she must be kept informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was working.
The entire SML period counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, for example, the right to a redundancy payment. An employee continues to accrue both their full statutory annual leave entitlement and any additional contractual entitlement throughout maternity.
Employees should be consulted during their maternity leave about
any proposed changes to their job in preparation for their return
Returning to work
An employee who returns to work during the first 26 weeks of maternity leave has the right to return to the same job on the same terms and conditions of employment as if she had not been absent.
An employee who returns to work during or at the end of the second 26 weeks of maternity leave is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent, unless is not reasonably practicable for her employer to let her return to her old job, in which case she should be offered a job that is suitable and appropriate for her to do and on terms and conditions that are no less favourable than those for her original job.
If in either of these cases a female employee returning to work is denied her rights, she could resign and claim constructive dismissal or raise a grievance, which could result in a tribunal claim for sex discrimination. An employee prevented from returning to work may make a complaint of unfair dismissal to an employment tribunal.
For more comprehensive information about Statutory Maternity Leave
Health and safety issues
It is important be bear in mind any specific on-farm situations where pregnant employees could be particularly at risk, for example the potential for being exposed to hazardous enzootic diseases and situations where they are at higher risk of physical injury.
Breastfeeding employees must be provided with a place to rest and suitable rest periods.
Statutory maternity pay
Pregnant workers may also be eligible to receive Statutory Maternity Pay (SMP). The employer is responsible for payment of SMP but the majority or the whole amount is reclaimable from HM Revenue & Customs - the proportion recoverable depends on the size of the employer's annual National Insurance Contributions liability.
SMP is paid for 39 weeks and usually covers the first 39 weeks of an employee's maternity leave. A pregnant employee qualifies for SMP provided she has:
- A minimum of 26 weeks of continuous employment extending into the 15th week before the expected week of childbirth.
- Average weekly earnings at or above the lower earnings limit for National Insurance contributions purposes.
- Provided her employer with confirmation of the pregnancy - a form MATB1 or equivalent document issued by a midwife or GP.
- Given 28 days of notice of the date from which she wants to begin her SMP.
Find out information on SMP rates and how it is calculated.
All expectant fathers those working under a contract of employment are legally entitled to Statutory Paternity Leave (SPL) around the time of the birth of their child. Expectant fathers may also be eligible for Statutory Paternity Pay (SPP). They have no legal right to time off to accompany their partner to antenatal appointments, but SPL is extra to the standard holiday entitlement.
The rights of expectant fathers to SPL and SPP are also comprehensive and detailed. There are clearly-defined time limits for employees to notify employers if they wish to take SPL and claim SPP.
To qualify for SPL, employees must have a minimum length of service of at least 26 weeks by the end of the 15th week before the start of the week when the baby is due or the end of the week you are notified you are matched with your child, if they are adopting. An employee must also fall into one of the following categories:
- Be the biological father of the child.
- Be the mother's husband or partner - this includes same-sex relationships.
- Be the child's adopter.
- Be the husband or partner - this includes same-sex relationships - of the child's adopter.
Expectant fathers meeting the eligibility criteria can take either one or two weeks of Statutory Paternity Leave. This must be on consecutive days and if two weeks are taken they must be consecutive.
The week is based on the employee's usual working pattern. Thus if an employee works two days per week ordinarily, a week for the purposes of SPL would be two days.
More comprehensive information about Statutory Paternity Leave
Statutory paternity pay is paid for up to two consecutive weeks, depending on how long you the employee chooses to take Statutory Paternity Leave for. The weekly rate depends on the employee's average weekly earnings.
For information on how SPP is calculated
Rights of parents
Parents of children aged 16 and under (or 18 and under if the child is disabled) are entitled to request to work flexibly. This may help them balance caring for their child and working. The employer must consider The employee's request and respond in writing. An employee returning to work after the birth or adoption of a child has the right to request to work flexibly, for example to work part-time hours. Further advice is available from ACAS
Employees are entitled to a period of paid bereavement leave of up to 2 or 4 days, depending upon the relationship of the employee to the deceased. Further information is provided in the Agricultural Wages Order.