Compliance blog

As an employer you need to know the rights of both the company and the employer when it comes to pregnancy and maternity leave.

We outline the key factors in what you must do under the current employment laws, and what your employees must do to benefit from the protections that are set in place for them. In this blog we will cover how to work out if you are required to pay Statutory Maternity Pay and if you need to claim it back. It will also cover how to talk to your pregnant employee about what her plans are from the early stages that will help you both in the process. This advice will help you to manage your employees working hours during her pregnancy, during her maternity leave and also on her return to work.

When your employee tells you they are pregnant

Once your employee states that she is pregnant, you must follow the rules that are set in place. The most important guidelines that are in place are the following;

  • You are required to carry out a risk assessment to identify whether there is any risk to your employee’s health. If you think that there would be any risk in her continuing her current role then you must remove this risk or make amendments to her current duties.
  • Your employee is entitled to paid time off to attend ante-natal appointments. It is required for your employee to show you her appointment card if you ask for one, except for her first appointment.
  • You must ensure that your employee is not being treated unfairly by you or her colleagues.

The risk assessment will identify whether there are any risks to your employee and her child while she is in her pregnancy, especially if she is breastfeeding.

Any unfair treatment that is directly connected with the pregnancy of your employee, her child birth or maternity leave is discrimination and must not happen. These are situations such as unfair dismissal and redundancy and you will have to take full responsibility and liability if you are to treat your employee unfairly in this manner.

If your employee is going to be returning to work during or at the end of her 26 weeks’ maternity leave, then she will be entitled to return to the exact job that she left, or that was agreed before she embarked on her maternity leave. The job must remain the same as if she hadn’t ever been away so that she feels as comfortable as possible when returning to work.

Planning her leave

All women are entitled to take up to 52 weeks’ maternity leave, but you need to ask your employee whether they know now if they are going to be using the full entitlement or whether they have something else in mind. You must also make sure that your employee does not work 2 weeks after she has given birth, and if she works in a factory then the recommendation is 4 weeks.

You may also have to take into consideration whether she has annual leave to take before her maternity leave, because you will need to make plans for this. When taking this into consideration you will need to think about whether you will reallocate work to other members of staff, or employ another person as a temporary employee to fill her role whilst she is away.

The important factor to note is that you must keep  her job open. However, if she is taking more than 26 weeks’ maternity leave, which is additional to the time that is already allocated, then you must offer your employee an alternative job that will be suitable to her if it is not reasonably practical to keep the original job open for this length of time.

If your employee is off work during her pregnancy with a related illness, then you must ensure that she is paid in the same way as she would be if it was any other type of illness. It is crucial to note that if you have any certain disciplinary rules in place which are related to sick leave, then you must exclude pregnancy-related illness.

The next steps

Within the first 28 days of receiving your employees dates for maternity leave, you must then write to your employee explaining her maternity leave requirements and when she will be due back at work. You should also note helpful information in regards to her Statutory Maternity Pay.

It is your responsibility to calculate how much you need to pay your employee if this is relevant to her, and also keep in mind that this pay is also subject to tax and National Insurance. If your employee does not qualify for SMP then you must issue her with an SMP1 form which will allow her to apply for Maternity Allowance from the government. If your employee is not going to be receiving SMP from you whilst she is on maternity leave then you must give her back the maternity certificate, which is called MATB1, as she will need this. If you have difficulties calculating this, then you can contact the HMRC Employer Helpline, which you will find on their website.

Some companies are entitles to claim back the Statutory Maternity Pay that they pay out, as you should be able to claim at least 92% of this back. However, small employers may be subject to receiving all of the SMP back, including compensation where applicable.

Your employee will qualify for this if she has been working for your company for 26 weeks before the 16th week of her due date and earns on average, enough to contribute to National Insurance. Statutory Maternity Pay is paid for a period of 39 weeks in total. Is is the law that you must pay 90% of your employee’s average weekly earnings in the first six weeks of her maternity leave, and thereafter; a lesser of the 90% or a standards rate.

During her maternity leave

It is advised that you keep in contact with your employee during her pregnancy, as this will help to maintain your working relationship. This doesn’t have to be every day, but reasonable contact would be beneficial. During these phone calls or emails you can inform her of any changes at work and update her with any training events that she may be able to attend during her leave.

During her maternity leave, she is not obliged to commit to or do any work for you; this also includes attending training events. It is completely up to her whether she will do this, but if you both agree on this then she is allowed to work for 10 day’s during her maternity leave.

Returning to work

Before your employee returns to work, you can chat to her about her plans to return to work and deal with any problems that may arise. You must also take practicalities into account, such as issuing notice to the temporary staff that may have been covering your employee whilst she was away.

If your employee decides to change her mind about returning to work, then she must inform you of this decision at least eight weeks’ of her return date.

Your employee may make a request to change her hours to be more flexible, or even ask to take a step down to part-time. You must carefully consider this and weigh up the pros and cons to decide whether this will be feasible for your company.