Over recent years the Government has become increasingly aware of the need to create a family friendly working environment to enable employees and workers to bring up a family at the same time as earn a living. While this may be laudable, nonetheless it can create difficulties for employers especially where the workforce has a high content of female workers who, by their very nature, are more likely to require time off for bringing up a family than many of the male population. However, fathers also have the right to paid paternity leave in addition to the existing rights of parental leave which was, and still is, unpaid.

Many employers have detailed maternity and paternity policies set out in their staff handbook. Additionally, employers may offer enhanced maternity and paternity pay over and above the statutory minimum, although this may sometimes be accompanied by discretion to recoup the enhanced payments from the employees if they fail to return to work for a minimum period following maternity leave.

All qualifying employees are entitled to time off for maternity/paternity related reasons and to be paid for this. Maternity leave is divided into two areas: Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML).

Statutory Maternity Leave

All employees, regardless of length of service, qualify for 12 months’ maternity leave. An employer is required to notify an employee of the date upon which the AML will end (previously this requirement was to notify the employee of the date on which the OML will end).

Statutory Maternity Pay (“SMP”)

The period for which SMP is paid is 9 months. For babies born on or after 3rd April 2011, mothers will also have the right to transfer a portion of their paid leave to their partner (for further details see Paternity – click here).

Early Return

For both OML and AML, an employee wishing to return to work before the scheduled end for either OML or AML must give not less than 8 weeks’ notice.

Keeping in Touch

An employee may voluntarily carry out up to 10 days’ work for the employer during the statutory maternity leave period (known as “keeping in touch” days). This work will not operate to bring the statutory maternity leave to an end.

Small Business Exemption

There is no small business exemption for employers. Employees will have the right to return to work following maternity leave to the same or similar job regardless of the size of organisation for which they work.

Statutory Maternity Pay

There are certain qualifying conditions for the right to receive statutory maternity pay and if an employee does not qualify for this, she may qualify for maternity allowance.

SMP is paid for 39 weeks, the first 6 weeks at 90% of the employees’ normal weekly earnings (the “earnings related rate”) and the remaining 33 weeks is paid at the lower of the prescribed rate or the earnings related rate.

Employers can recover 92% of payments but if their total National Insurance payments are less than £45,000 per year they can recover 104.5 per cent to cover payments and other costs. SMP is recovered by deducting it from payments made to HM Revenue & Customs (HMRC) for PAYE and National Insurance. Employers can also get funding in advance for payments of SMP from HMRC.

Contractual Rights Subsisting During Maternity Leave

All the terms of the contract of employment remain in place throughout OML and AML with the exception of the right to remuneration. This means that the salary may change (because the woman receives SMP) but all other benefits such as annual leave, pensions, health club membership, use of the Company car and so on will continue. However, the employee is entitled to the benefit of any pay rises made while she is absent, regardless of when the pay rise takes place, and this may affect the calculation of maternity pay.

Bonuses and commission will be payable if they relate to work done before the maternity leave period commences even if the actual payment is made when the employee is on leave.

Annual discretionary bonuses or profit related pay dividends payable for work done over the course of the previous year should be paid pro-rata for the time the employee is not on maternity leave. This area of law is however complex and in places inconsistent, and as such specific advice should always be obtained.

Annual Leave

Statutory annual leave entitlement under the Working Time Regulations continues to accrue throughout the maternity leave period. Any contractual entitlement will also accrue so the employer needs to consider carefully how this is dealt with in terms of being taken.

Right to Return to Work


  • Entitled to return to the same job as she was doing before she was absent if returning:
    • from one isolated period of leave; or
    • after two or more periods of statutory leave not including additional maternity/adoption or more than 4 weeks’ parental leave
  • Entitled to return to the same terms and conditions as if she had not been absent
  • Seniority, pension and similar rights remain unchanged upon return

If returning after two or more periods which include additional maternity/adoption or parental leave exceeding four weeks or if a redundancy situation subsists and it is not reasonably practicable to allow her to return to the same job, the rights on return are the same as for return after additional leave. She should be given priority over staff for any vacancies.


  • Entitled to return to the same job or one which is suitable and appropriate
  • Entitled to return to work on the same terms and conditions as if she had not been absent
  • Seniority, pension and similar rights remain unchanged upon return

Sex Discrimination

Employers should be very aware of the possibility of sex discrimination claims being brought by employees who feel they have been treated less favourably for reasons relating to their taking of maternity leave. It is vital to ensure that all employees on maternity leave are treated no less favourably than if they were working – they are entitled to be kept informed of any changes in the workplace and to benefit from any pay rises or to be considered for promotion if such opportunities arise while they are on maternity leave and, but for being on leave, they would be able to apply for promotion or other vacancies. If a redundancy situation arises while an employee is on maternity leave she has the right to be informed and consulted in the same way as if she was still at work.

Crucially, women on maternity leave benefit from protected rights where their job is at risk of redundancy. They must be offered any position which is suitable and appropriate for them to do, over and above women not on maternity leave who are also at risk of redundancy. This is the case even if (and some employers find this quite frustrating) the woman on maternity leave is plainly less competent that others at risk.

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