Maternity issues and SMP: 23 FAQs

1. Am I allowed to ask a woman at a job interview whether she is or intends to become pregnant?
2. When can an employee start ordinary maternity leave?
3. An employee who has only recently joined us has announced that she is pregnant. Is she entitled to maternity leave?
4. I only have three employees. If one of them disappears on maternity leave, I don't have to keep her job available for her, do I?
5. Under what circumstances do I have to pay statutory maternity pay (SMP)?
6. A new employee has just announced she is pregnant. Surely we can just dismiss her?
7. We have a part-timer who has just announced that she is pregnant. What is she entitled to?
8. We can't function without someone doing the job that a pregnant employee is currently doing. Can we take on a replacement?
9. The replacement has turned out to be much better than the woman she replaced. Can we keep her and move the new mother sideways?
10. Do I have to put up with a pregnant employee who keeps on disappearing for maternity appointments?
11. I've got a pregnant employee who seems to be permanently sick. How much time off do I have to give her?
12. How much notice of return does a new mother have to give, and can we postpone her return?
13. An employee who has had a baby said she was coming back a month ago, but keeps on sending sick notes instead. What can we do? 
14. An employee wants to come back on a part-time basis. This does not suit us. What can we do?
15. How much is statutory maternity pay?
16. Who actually pays SMP?
17. What do I need to know about making someone redundant during pregnancy or maternity leave?
18. We have taken away an employee's company car while she is on ordinary maternity leave. She says this is unlawful. Is it?
19. What do we have to give mothers (and fathers) by way of leave, and do we have to pay them for it?
20. Do I have any obligations in respect of a pregnant employee's health and safety?
21. We have a pregnant part-timer, who earns about £60 a week. What is she entitled to?
22. What evidence do I need of the date the baby is due, before I can reclaim SMP?
23. An employees' partner is returning to work after having a baby and he wants to take the remainder of her maternity leave. Is he entitled to take her remaining leave and pay?

1. Am I allowed to ask a woman at a job interview whether she is or intends to become pregnant?

There is no ban on questions about pregnancy, but avoid them if possible, as they could be construed as evidence that you intend to discriminate. Questions about childcare commitments should also be avoided, unless you can show that they are relevant to the job requirements, and you ensure that you ask both men and women the same question.

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2. When can an employee start ordinary maternity leave?

A pregnant employee can start ordinary maternity leave any time after the beginning of the 11th week before the week in which the baby is due.

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3. An employee who has only recently joined us has announced that she is pregnant. Is she entitled to maternity leave?

Yes, she will be entitled to 26 weeks’ ordinary maternity leave plus additional maternity leave of a further 26 weeks, irrespective of her length of service, provided she gives you proper notice (see below).

In most cases, employees will also be entitled to maternity pay (see 5) or maternity allowance (see 21).

In order to qualify for ordinary maternity leave, your employee must notify you by the end of the 15^th week before the week in which the baby is due (or if that is not reasonably practicable, as soon as is reasonably practicable) of:

• her pregnancy
• the expected week of childbirth
• the date on which she intends to start ordinary maternity leave

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4. I only have three employees. If one of them disappears on maternity leave, I don't have to keep her job available for her, do I?

You must keep the same job available for those who return from ordinary maternity leave. You must also keep the same job available for those who return from additional maternity leave unless it is not reasonably practical to keep the original job open. In that case, if a different job is offered, it must be on the same terms and conditions as if she had never been absent. The small firms’ exemption – previously available to those who employed five people or fewer – from unfair dismissal claims if there was no job for a woman returning from additional maternity leave, has been withdrawn.

The courts have interpreted the meaning of ‘same job’ by considering the nature of the job, the employee’s capacity to do it and where it would be performed.

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5. Under what circumstances do I have to pay statutory maternity pay (SMP)?

Statutory maternity pay (SMP) lasts for 39 weeks and must be paid to any pregnant employee, provided that she:

• has 26 weeks’ continuous service by the 15^th week before the week in which the baby is due
• is an employed earner and earns at least £102 per week (since April 2011) for the eight weeks up to and including the 15^th week before the week in which the baby is due
• has produced medical evidence of the week in which the baby is due
• has given 28 days’ notice of the date on which she wishes to start SMP
• has reached the 11^th week before the expected week of childbirth (EWC)
• has begun her maternity leave, ie is no longer working for the employer 

For the rates at which it is paid, see 15.  If an employee does not qualify for SMP, she may well qualify for maternity allowance (see 21).

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6. A new employee has just announced she is pregnant. Surely we can just dismiss her?

No, because you could face an unfair dismissal claim. As a general rule, if you dismiss an employee for a reason connected with pregnancy (or maternity leave or parental leave), you will be liable for unfair dismissal as well as sex discrimination.

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7. We have a part-timer who has just announced that she is pregnant. What is she entitled to?

 She is entitled to be treated no less favourably than a full-timer. Like a full-timer, she has the right to ordinary and additional maternity leave, the right to return to her job after maternity leave and she may be entitled to statutory maternity pay (see question 15).

She is also entitled to all of her normal terms and conditions of employment, except remuneration, during the period of her ordinary maternity leave and additional maternity leave.

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8. We can't function without someone doing the job that a pregnant employee is currently doing. Can we take on a replacement?

Yes - but make it plain that you are recruiting them to provide maternity cover, and will employ them on a temporary or fixed term contract. If the maternity cover lasts for one year or more, the replacement will acquire the right not to be unfairly dismissed. In those circumstances, if there is suitable alternative employment available and you fail to offer it to the replacement, you may be liable for unfair dismissal.

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9. The replacement has turned out to be much better than the woman she replaced. Can we keep her and move the new mother sideways?

If the new mother is taking ordinary maternity leave, you must keep her original job open for her. If she is taking additional maternity leave, she has the right to come back to her original job or, if that is not reasonably practicable, to a suitable alternative job. You could have a hard job demonstrating that it was not reasonably practicable to reinstate her. The key point is that the new mother has a statutory right to return to her old job, and this outweighs any consideration about the relative merits of the replacement. However, the new mother also has the right to ask for part-time work, which might solve your problem.

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10. Do I have to put up with a pregnant employee who keeps on disappearing for maternity appointments?

Yes. A pregnant employee is entitled to paid time off for ante-natal care, which may include parenting and relaxation classes. You cannot unreasonably refuse a pregnant employee time off, however you can ask for evidence of the appointments such as doctor’s letter or an NHS appointment card.

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11. I've got a pregnant employee who seems to be permanently sick. How much time off do I have to give her?

You should treat her in the same way as you would treat any other sick employee, and allow her to take sick leave in accordance with your sickness procedure. Is her illness pregnancy-related? If so, avoid taking any unfavourable action against her during her pregnancy and maternity leave, on account of her illness. Otherwise, you leave yourself open to a claim for sex discrimination and unfair dismissal. If the employee is absent from work wholly or partly because of pregnancy, during the four weeks before the week in which the baby is due, the ordinary maternity leave period will start automatically, even if the employee intended it to start at a later date.

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12. How much notice of return does a new mother have to give, and can we postpone her return?

She does not have to give you any notice at all if she intends to return to work at the end of her maternity leave. If she intends to return before that, she should now give you at least eight weeks' notice. If she fails to give adequate notice, you can postpone her return to give yourselves eight weeks' notice. You cannot postpone her return to a date later than the end of her ordinary or additional maternity leave, except with her agreement.

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13. An employee who has had a baby said she was coming back a month ago, but keeps on sending sick notes instead. What can we do?

The employee does not lose her right to return to work. Therefore, you should treat her in the same way as any other employee on sick leave, including paying her normal sick pay entitlement, whether contractual sick pay or Statutory Sick Pay. If the sickness continues you may eventually want to consider dismissing her, in which case you will have to implement your full dismissal procedures. In assessing her sickness record, you must ignore any periods of sick leave for a pregnancy-related illness during her pregnancy and maternity leave. Alternatively, you and the employee could agree to postpone her date of return from maternity leave.

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14. An employee wants to come back on a part-time basis. This does not suit us. What can we do?

You are obliged to give the request careful consideration. If you decide not to grant it, you must provide the employee with good business reasons for your decision. You must be able to show that these reasons are objectively justified, in order to avoid liability for sex discrimination. You should try to be flexible in your approach, as far as possible. The fact that the job has not been done on a part-time basis before will not in itself justify refusing the employee's request.

Parents of children aged sixteen or under (previously six) or disabled children under 18 have the right to apply to work flexibly, provided that they have the qualifying length of service (26 weeks) and have not made another application within the preceding 12 months. Carers of adults now have the same right. Employers must deal with such applications under a specific procedure.

If you turn down a request from a qualifying employee, he or she may make a claim against you in an Employment Tribunal on the grounds that you have failed to comply with the procedure, or that your decision to reject the application for flexible working is based on incorrect facts, or is not a permitted business reason.

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15. How much is statutory maternity pay?

There are two rates of statutory maternity pay (SMP). For the first six weeks, SMP is paid at the higher rate, ie 90 per cent of the employee’s normal weekly earnings. Following a recent case at the European Court of Justice, ‘normal weekly earnings’ will have to include any pay rises made up to the end of her maternity leave, although the government has yet to decide how the law will be changed to implement this.

For the remaining 33 weeks, SMP is paid at the lower rate, now £128.73 a week (since April 2011), or 90 per cent of the woman’s average earnings if this is less than £128.73 per week.

Mothers now have the right to transfer a proportion of their maternity leave and pay to fathers. To qualify for additional paternity leave and pay your employee must: 

• be the father of a baby due to be born on or after 3 April 2011
• be the husband/partner/civil partner of the mother
• have at least 26 weeks' service by the 15^th week before the baby is due
• earn at least £102 per week
• be taking time off to care for the baby
• have at least two weeks of the mother's maternity leave remaining

The leave can be taken at any time from 20 weeks after the baby has been born. Leave can last between two and 26 weeks and must end before the baby's first birthday.

There are plans to extend SMP to 12 months.

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16. Who actually pays SMP?

You, as employer, pay statutory maternity pay (SMP). But you can recover 92 per cent of the amount of SMP paid by deducting that amount from your National Insurance contributions payments to HM Revenue and Customs. If you are a small employer, you may recover 100 per cent of SMP paid plus an additional 3 per cent compensation. You qualify as a small employer if your NI contributions amount to not more than £45,000 a year.

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17. What do I need to know about making someone redundant during pregnancy or maternity leave?

Avoid it if you can. Unless you are closing down a whole site, or a whole section, you may find it difficult to rebut the suspicion that you have selected this employee for redundancy because she is pregnant, which could leave you open to penalties for unfair dismissal and sex discrimination.

If a redundancy situation arises during an employee's ordinary maternity leave or additional maternity leave, you must consider whether it is reasonably practicable to continue to employ her in her existing job. This will involve considering whether the employee on maternity leave, or some other employee, should be selected for redundancy. If you decide to select the employee on maternity leave, you must offer her any suitable vacancy that is available, or pay redundancy pay, just as with the other employees affected.

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18. We have taken away an employee's company car while she is on ordinary maternity leave. She says this is unlawful. Is it?

Yes. During the ordinary maternity leave period, she is entitled to all of her normal terms and conditions of employment, except 'remuneration'. The same rules also apply to additional maternity leave.

The normal terms and conditions of employment may include any non-cash contractual benefits such as a company car, home PC or gym membership, health benefits and any contractual entitlement to holiday above the statutory minimum.

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19. What do we have to give mothers (and fathers) by way of leave, and do we have to pay them for it?

All mothers are entitled to 26 weeks’ ordinary maternity leave plus a further 26 weeks' additional maternity leave, irrespective of their length of service, provided they gives you proper notice. Statutory maternity pay (SMP) is paid to qualifying employees for 39 weeks. To qualify for SMP the employee must:

• have 26 weeks’ continuous service by the 15^th week before the week in which the baby is due
• earn at least £102 per week for the eight weeks up to and including the 15^th week before the week in which the baby is due
• produce medical evidence of the week in which the baby is due
• give 28 days’ notice of the date on which she wishes to start SMP
• has reached the 11^th week before the expected week of childbirth (EWC)

For the rates at which it is paid, see 15.  If an employee does not qualify for SMP, she may well qualify for maternity allowance (see 21).

Fathers are entitled to one week or two consecutive weeks’ paid ordinary paternity leave, paid on the same basis as maternity pay, at or around the birth of the child, for the purpose of caring for the child or supporting the mother. Ordinary paternity leave must be taken within 56 days of the baby's birth (or placement in the case of adoptions) and be taken as a block of one or two weeks' leave. It cannot be taken before the baby has been born or has been placed.

Mothers of babies due on or after 3 April 2011 may also have the right to transfer some of their maternity leave and pay to the baby's father (or co-adopter in the case of adoptions). Additional paternity leave can be taken by qualifying fathers if the mother has returned to work with some of her maternity leave remaining. It can be taken at any time from 20 weeks after the baby has been born and lasts between two and 26 weeks.

In order to qualify for ordinary paternity leave or additional paternity leave, the father (or co-adopter) must have at least 26 weeks’ service with you by the 15^th week before the expected week of childbirth. They must be the biological father of the child or the husband or partner of the child’s mother. They must also have, or expect to have, responsibility for bringing up the child.

Any employee who has at least one year’s service with an employer is also entitled to take up to 13 weeks’ unpaid parental leave for the purpose of caring for a child. Parental leave may be taken until the child’s 5^th birthday or, in the case of an adopted child, until five years after the placement of the child. In the case of a disabled child, an employee may take up to 18 weeks’ parental leave at any time until the child’s 18^th birthday. 

Entitlement to parental leave is in respect of employment with all employers. So when you are taking on new employees, it is advisable to check with their previous employers as to how much parental leave, if any, they have taken.

Parental leave may be taken in blocks or multiples of one week, up to a maximum of four weeks per year.

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20. Do I have any obligations in respect of a pregnant employee's health and safety?

There are important issues you must take into account. You must ensure that all pregnant employees take at least two weeks off work (four weeks, in the case of employees who work in factories) to care for the baby after its birth. In addition, you must assess the health and safety risks posed both to pregnant workers if the work is of a kind that could involve a risk of harm or damage to her or her baby.

If this assessment reveals that the health or safety of the employee is threatened, you must take all reasonable measures to avoid the risk. If there is still a risk, you must alter the employee’s working hours or conditions of work, if this would remove the risk, and it is reasonable to do so. Otherwise, you must suspend the employee on full pay for as long as is necessary to protect her health or safety, or that of her baby.

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21. We have a pregnant part-timer, who earns about £60 a week. What is she entitled to?

She will qualify for maternity allowance, provided that she:

• has been employed (or self-employed) for at least 26 weeks (including part-weeks) within the 66 weeks up to and including the week in which the baby is due to be born
• has earned at least £30 a week in at least 13 of those weeks
• has reached the 11th week before the expected week of childbirth (EWC)
• is not receiving statutory maternity pay (SMP)

Maternity allowance is now payable for up to 39 weeks (previously 26 weeks) at a standard weekly rate of £128.73, or 90 per cent of average weekly earnings if this is less than £128.73.

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22. What evidence do I need of the date the baby is due, before I can reclaim SMP?

You need a completed form MAT B1 from your employee or a letter from her doctor or midwife which must show:

• the employee's name
• when the baby is due
• the date of the medical examination
• the date of signing
• the signature of the doctor or midwife
• the doctor's stamp, or the midwife's PIN number

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23. An employees' partner is returning to work after having a baby and he wants to take the remainder of her maternity leave. Is he entitled to take her remaining leave and pay?

Your employee is entitled to take his partner's unused maternity leave and pay if he:

• is the father or co-adopter of a child due or placed on or after 3 April 2011
• has at least 26 weeks’ service with you by the 15^th week before the expected week of childbirth
• is the biological father of the child or the husband or partner of the child’s mother
• has, or expects to have, responsibility for bringing up the child
• is taking time off to care for the child

He can take unused leave and pay at any time from 20 weeks after the baby is born or placed if the mother has returned to work and is entitled to maternity leave, pay or maternity allowance. The leave must be taken before the child's first birthday and be taken as continuous weeks' leave.

To qualify for additional paternity pay, the employee must earn at least £102 in the 15^th week before the expected week of childbirth (or placement) and there must be at least two weeks' maternity pay remaining.