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Hallett
Employment Law Services Ltd

Maternity Leave

Subject to satisfying various notice requirements (see below) all pregnant employees are now entitled to take up to 52 weeks maternity leave irrespective of their length of service with their employer.

There are three distinct periods within the total 52 weeks leave period.

  1. Compulsory Leave Period

    It is illegal for an employee to work for her employer in the first 2 weeks following the birth of her child (4 weeks for those that work in factories). BOTH the employee AND the employer commit a criminal offence if the employee works for the employer during this period. The European Commission published a proposal in October 2008 to increase the Compulsory Leave period to 6 weeks.
  2. Ordinary Maternity Leave Period (OML)

    The Compulsory leave period will fall within the Ordinary Maternity Leave period. This period is the first 26 weeks of maternity leave. During this time the employee is entitled to all of her usual terms and conditions of employment, apart from her pay, as if she was still at work. Therefore her paid holiday entitlement continues to accrue in this period, she continues her entitlement to contractual benefits in kind (such as use of a company mobile phone, use of company car, continued membership of any employee healthcare scheme, participation in share schemes etc.)

    The employee’s contract still operates throughout the OML period, so any benefits linked to length of service will accrue and/or apply. In the case of holiday entitlement, this accrued entitlement can be taken before or after the OML period (subject to any requirements on giving notice to take holiday).

    Employers must ensure that employees absent on OML are informed and consulted over any redundancies, or transfer of the business. Similarly they should be informed and consulted over any proposed change of the terms of their contract of employment that occurs during the maternity leave period.
  3. Additional Maternity Leave Period (AML)

    All pregnant employees now qualify to take the full 52 weeks maternity leave, which includes the second 26 week, Additional Maternity Leave, Period.

    The AML period commences at the end of the OML period.

    There used to be some significant differences between the legal rights, entitlements, and obligations that applied to an employee on AML compared to one during the OML period. To summarise, prior to the 5th October 2008 during the AML period:-

    a. The employee’s contract of employment continued to exist,

    b. The employee continued to be owed the implied terms of trust and confidence from her employer,

    c. the employee was still entitled to her proper notice of termination rights,

    d. She was entitled to compensation in the event of redundancy,

    e. She was entitled to the use of the employers disciplinary, and grievance procedures,

    f. She continued to accrue any paid holiday rights under the Working Time Regulations (but NOT any top-up contractual holiday entitlement).

In return the employee continued to owe the following obligations to her employer:-

i. Giving proper notice of termination,

ii. Protection of confidential information

iii. Continuing duty not to work in competition with her employer.

Since the 5th October 2008

The Government was required to change the legal rights of those employees on AML in order to meet the requirements of European Law, and the ruling of the European Court of Justice.

Therefore, any employee on AML since then enjoys the same the range of rights as applied during the OML period (see above).

So, they continue to enjoy the benefits of their contract of employment (apart from salary), keeping the benefits in kind (such as accruing their entitlement to paid holiday- both the statutory and contractual entitlements , provision of a company car, work provided laptop, company mobile phone, healthcare benefits, employer pension contributions, the right to give and receive their contractual notice etc.).  Any employee on AML should also be consulted over any relevant changes in the workplace, such as possible redundancy. 

The slight difference between the rights during the OML and AML period now relate to the precise nature of the right to return to work after the AML period which is to return to their job, or if that is not available to return to a suitable and appropriate job on the same terms and conditions. As with a return after OML, an employee returning after AML will also be entitled to any improvement in her terms and conditions of employment that have applied to her group or class of workers in her absence, such as a pay rise, increase in holiday entitlement etc.

For small or medium sized businesses this extension of the contraactual rights into the AML period may well prove difficult and costly, but it is a legal obligation.

Notice of Intention to take Maternity Leave

In order to take the entitlement to maternity leave the employee has to give her employer notice of the following:-

  1. The fact that she is pregnant
  2. The date of the Expected Week of Confinement –EWC (i.e. the week in which the birth is expected), and
  3. State the date on which she intends to start her maternity leave.

This notification must be given NO LATER than the end of the 15th week before the EWC. Notice of the EWC is usually given by using the MAT B1 form.

Start of Maternity Leave

The date of the start of the maternity leave cannot be earlier than the 11th week before the EWC,

Changing the start date

The employee may change the start date of the leave period if she notifies her employer of the new start date no later than the sooner of:-

i. 28 days before the date she originally intended to start leave, OR

ii. 28 days before the new start date she wants.

Return Date

The law assumes, and therefore the employer must now assume that the employee will take her FULL (52 weeks) entitlement.

If the employee does not wish to return to work after her maternity leave she must give her contractual notice. If the employee is ill at the end of her maternity leave, and is unable to return due to illness, she must be treated under the employer’s sickness-absence procedures.

Contacting the Employee during Maternity Leave

It is advisable that the employer does keep in contact with the employee during the maternity leave period. However, this should not be excessive or oppressive. It is best to reach some agreement with the employee before she commences maternity leave as to how, and how often, she will be contacted. It is also advisable to agree the reasons for contacting the employee during her maternity leave.

Keeping in Touch Days –Working during Maternity Leave

The employee can agree to work up to 10 days during their maternity leave period. These are called “Keeping in Touch Days”. She can work up to 10 days without losing her statutory maternity rights.  These days may fall at any stage of the maternity leave APART FROM the first 2 weeks (the Compulsory Leave period).

It should be noted that any day or part day will count as a full “keeping in touch day”. Therefore employees cannot, for example work 40 quarter days, or 20 half days, instead of 10 full days.

Important Notes

  1. Employers MUST have and properly implement a maternity leave policy, that covers all the relevant statutory requirements and is workable and practicable in areas that the employer can control – such as in dealing with “keeping in touch” days.
  2. The law on maternity leave and rights have altered radically over recent years. Further changes have been proposed by the Government, so employers must regularly review their policies and procedures in this area.

 

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