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1. Can I Take Maternity
Leave?
- All women employees are entitled to 26 weeks Ordinary Maternity
Leave (OML) whatever their length of service or hours. You have the right to return to exactly the same job after your
OML.
- If you have 26 week’s service (at the 14th week before the expected week of childbirth),
you will also be entitled to Additional Maternity Leave (AML). This extends maternity leave for a further 26 weeks starting
from the end of OML. The total period of maternity leave is one year.
- Your
leave can start at any time after the 11th week before the expected week of childbirth. It is up to you to decide when
you start your maternity leave, so long as the start date is after the 11th week before your due date. The
latest maternity leave can start is the date your baby is born. You count your 26 weeks from the date you start your leave.
To take maternity leave you should:
- Notify your employer (a) that you are pregnant (b) the expected
week of childbirth and (c) the date on which you intend leave to start, before the end of the 15th week before
your due date. Your employer can ask you to put this information in writing.
- You can amend
the intended start date of your leave with at least 28 days notice where reasonably practicable.
- Your employer
must inform you in writing of your leave period and expected week of return within 28 days of your providing notice.
If you are entitled to AML, you employer should assume you will take it and give you a return date that is 52 weeks from the
date you intend to start maternity leave.
- If no earlier than fourteen weeks before the expected week of childbirth, your employer asks, you must supply a medical
certificate (Mat B1) stating the expected week of childbirth. If you do not intend to return, but still qualify for
the pay, the Mat B1 need not be given until after what would have been the end of the 3rd week of OML. You can get the
Mat B1 from your midwife after the 20th week of pregnancy.
- You need not give notice of return to work from OML or AML, unless you wish to return earlier than your full leave
entitlement. In that case, you have to give 28 days notice of the revised date of your return. If you do not give 28
days notice, your employer can postpone your return until 28 days notice has passed.
- OML includes 2 weeks Compulsory Maternity Leave (CML) after childbirth
(4 weeks if you work in a factory). CML means you cannot do any work or even be contacted about work though your employer
can contact you, for example, to offer congratulations etc.
- There are two instances where maternity leave
is automatically triggered
- Where your baby is born before you are due to start leave and
- Where you are absent from work for a pregnancy related reason (e.g. pregnancy related sickness or a possibly a health
and safety suspension) after the 4th week before the expected week of childbirth.
If either of these occurs, the notice provisions are adjusted.
You must, nevertheless, tell the employer as soon as you can.
Complaints about failure to allow
you to take or return from maternity leave should be made to an Employment Tribunal. A three months time limit for making
a complaint generally applies. Before making a claim you must put your grievance in writing to your employer. The time
limit for bringing a claim will then be extended by another three months.
If you are dismissed because you
are pregnant, have taken maternity leave or for another reason related to your pregnancy, you can make a claim for unfair
dismissal and sex discrimination, even if you have not worked for your employer for a full year (see 19 Am I Protected From
Dismissal or Detriment During Maternity).
2. Can I Get Maternity Pay? Separate from your rights to maternity leave you may have a right to either Statutory Maternity
Pay (SMP) or Maternity Allowance (MA). Your employer pays SMP. The Jobcentre Plus pays MA. Check whether your employer offers
contractual maternity pay over and above, and if so whether there are any conditions, for example returning to work for a
minimum period of time. Statutory Maternity Pay (SMP) - To qualify for
SMP you must have; • Worked for your employer for
at least 26 weeks prior to the 15th week before your baby is due;
• Earning an average amount which at least equals the lower earnings limit which applies on the saturday
at the end of the qualifying week.
• Given
your employer evidence of the date your baby is due (usually your Mat B1)
• Given your employer at least 28 days notice that you want to claim SMP (most women
give notice for maternity leave and pay at the same time i.e. at the latest by the 15th week before your due date)
• Stopped work.
If
you satisfy these conditions you will get; • 6 weeks
pay at 90% of your average earnings and
• for
the remaining 33 weeks at the lower of either the standard rate of £128.73 or 90 per cent of your average gross weekly
earnings.
Your SMP will normally start on the Sunday after
you begin your maternity leave and continue for 39 weeks (the maternity pay period). If you return to work before
the end of the maternity pay period your SMP will stop and you will lose any outstanding amount.
You get SMP regardless of whether or not you intend to go back to work. SMP is paid by your
employer, who claims most of it back from the Inland Revenue. You have to pay tax and national insurance on your SMP. It can
be offset against any other entitlements under your contract, except holiday pay. If your employer does not pay you SMP, you
should be given form SMP1 explaining why you are not being paid. You can query this with your local Inland Revenue office.
Maternity Allowance (MA) – If you do not qualify for SMP (maybe because
you have not worked for your employer long enough or your earnings are too low) you may qualify for MA instead. You should
qualify for MA if: • You meet all of the conditions
for SMP but have not been working for your employer for 26 weeks, but have worked for at least 26 weeks out of the 66 weeks
prior to the date when your baby is due (even if this was with different employers) you can get MA at £128.73 a week,
or 90% of your average earnings, whichever is the lower sum for a maximum period of 39 weeks.
• Your earnings are too low to get SMP (less than the lower earnings limit)
but are an average of at least £30 a week from one or more jobs, you can get MA at 90% of your average earnings.
To claim MA send form MA1 (obtainable from your local Jobcentre Plus office or ante natal clinics) with your
maternity certificate form MAT B1 to your local Jobcentre Plus office. If you are an employee you will also need to
provide form SMP1 which you should get from your employer.
If
you are on a low income you may be able to claim a Sure Start Maternity Grant of £500. Speak to your midwife or contact
your local Jobcentre Plus for more information. THESE ARE
ONLY THE BASIC STATUTORY RIGHTS. YOUR EMPLOYER MAY PROVIDE HIGHER PAYMENTS. IF NOT, NEGOTIATE!
3. Am I Protected From Dismissal
Or Detriment During Maternity?
• All
women employees, whether temporary or permanent and regardless of hours worked or length of service, are automatically protected
from dismissal, detriment and selection for redundancy solely or mainly on the grounds of being pregnant, having given birth
or taken maternity leave. There is no option for employers to justify the treatment. Any dismissal connected to
a woman’s pregnancy, childbirth or maternity will generally also be discriminatory. So an employer cannot:
• Dismiss you or select
you for redundancy (unless there is a genuine redundancy situation)
• Dismiss you because of some statutory restriction on employment or on grounds
of health and safety. Instead, the employer should transfer or suspend you. If transferred you will take on the
terms and conditions of the new job (which should not be substantially less favourable). Suspension will be on full
pay (see also Am I Entitled to Ante-Natal Care And/Or Health And Safety Protection)
• Refuse to allow you to return to your job after your maternity leave (unless there
has been genuine redundancy or reorganisation)
• Dismiss
you for exercising a statutory right such as time off for ante-natal care
• Subject you to any detriment e.g. denial of promotion, training opportunities,
facilities
• Use any pregnancy-related
sickness as grounds for triggering disciplinary proceedings, dismissing you or making you redundant
• Dismiss you if you are sick at the end of maternity leave and cannot physically
return on the appointed day. Your maternity leave will end and you will then be on sick leave. You should provide your
employer with a medical certificate and comply with any other requirements of the sickness policy. If your employer normally
provides sick pay this should be paid to you. If not you may be entitled to statutory sickness benefits – contact
your Jobcentre Plus for more information.
• You
generally have the right to return to your same job following maternity leave. There are three exceptions.
• Where your employer has 5 or less employees and you have taken additional maternity
leave, if it is not reasonably practicable to allow you to return, it will not be automatically unfair for your employer to
dismiss you.
• If there is a genuine
redundancy and there is no suitable alternative vacancy. If you have at least two years service will be entitled to redundancy
pay. Your employer should consult with you about potential redundancies even if you are on maternity leave.
• If there is a genuine redundancy which occurs during the leave period and there
is a suitable alternative vacancy, your employer should offer this to you. If you refuse, your employer can dismiss you and
you may lose the right to redundancy pay.
• If
you are dismissed, the employer must provide you with a written statement of reasons for dismissal.
Complaints about dismissal, redundancy and detriment can be made to Employment Tribunals, generally
within 3 months of the action. Both unfair dismissal and sex discrimination should be claimed. If your employer does
not comply with the statutory dismissal procedures before dismissing you, any dismissal will be automatically unfair.
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