Entitlement to Maternity Pay and Leave UK

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Offering More than Statutory Amounts

Employers who have a company maternity scheme can choose to offer extra leave or pay. But, you must ensure the policies of the scheme are clear and available to your staff.

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Premature Births

If the baby is born early, the leave period will start the day after the birth. The employer must confirm the new end date for employee leave in writing.

You must also get the child’s birth certificate from your employee (or a document signed by a doctor or midwife) confirming the actual date of birth.

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What if the Baby Dies?

As a rule, employees would still meet the qualification criteria for leave or pay even if the baby:

• Dies after being born.
• Is stillborn if it happens after the start of the 24th week of pregnancy.

Note: UK employment law protects employee rights when on leave after having a child (e.g. holidays, pay, and returning to a job). Furthermore, you still need to pay Statutory Maternity Pay (SMP) if you cease trading.

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Employee Eligibility Criteria

Depending on their eligibility, some employees will not qualify for both Statutory Maternity Pay and Leave at the same time. To qualify for leave, employees need to:

• Have an employment contract with an employer (no matter how long they worked for them).
• Provide their employer with the correct notice.

To qualify for Statutory Maternity Pay, employees need to:

• Be on payroll during the ‘qualifying week’ (the fifteenth week before the expected week of childbirth).
• Provide their employer with the correct notice and an appropriate proof of pregnancy.
• Have been in continuous employment with the same employer for a period of at least twenty six (26) weeks up to any day of the qualifying week.
• Be earning at least £123 a week (gross) in an 8-week ‘relevant period’.

Employees may still qualify provided they usually earn an average of at least £123 a week, even if they earned less in some weeks due to being ‘on furlough’ under the Coronavirus Job Retention Scheme.

HM Revenue and Customs produce guidance explaining how employee circumstances affect payment when they get a pay rise, become sick, leave your employment, or die.

Note: The maternity pay calculator is a tool used to work out an employee’s eligibility. Employers can also use it to determine the relevant period, notice period, as well as statutory maternity pay.

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Employee Proof of Pregnancy

Your employee needs to provide you with proof of the pregnancy before they get SMP. As a rule, the evidence will either be a letter from a doctor or an MATB1 (maternity certificate).

In most cases, a doctor or a midwife will issue this type of proof around twenty (20) weeks before the baby’s due date.

Employees should give proof of pregnancy within twenty one (21) days of the start date for SMP – even though employers can agree to accept it later. Not receiving proof of the due date within 13 weeks after the SMP start date means employers can refuse to pay SMP (see below).

Note: Employers must keep records of the documents used to provide proof of pregnancy. Pregnant women who do not get Statutory Maternity Pay may qualify for Maternity Allowance instead.

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Employee Notice Periods

Notice only needs to be in writing if an employer requests it. For Statutory Maternity Leave, employees must – at least 15 weeks before the expected birth date – give notice about:

• The actual date that the baby is due.
• When they want their maternity leave to start (can be changed with 28 days of notice).

Employers have 28 days to write to their employees to confirm the leave start and end date. Employees can give eight (8) weeks of notice to change their return to work date.

Furthermore, employers cannot refuse Statutory Maternity Leave or the amount of leave taken as time off work by their employees.

Employees need to give 28 days of notice of the date that they want to start their Statutory Maternity Pay (SMP). In most cases, it will be the same date they will start their leave.

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Refuse Statutory Maternity Pay (SMP1)

Employers can refuse to pay SMP if an employee fails to give notice (without a reasonable excuse) or they do not meet the eligibility criteria.

There is a special form for employers to fill in and give to employees who are not entitled to Statutory Maternity Pay. Thus, give your employee ‘form SMP1‘ within seven (7) days of your decision.

You must give the SMP1 form to your employee within twenty eight (28) days of the birth or their request for SMP (whichever happens first).

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Keeping Records for HMRC

HM Revenue and Customs require employers to keep records (e.g. using record sheet SMP2) for at least three (3) years from the end of the relevant tax year. The records must include:

• A copy of the evidence used for proof of pregnancy (e.g. a doctor’s note or MATB1 certificate).
• Start date for Statutory Maternity Pay (SMP) and what payments were made (including the dates).
• Details of any statutory payments you reclaimed.
• Information about any weeks you did not pay and the reason for not doing so.

Note: If you can get financial help with statutory pay you may be able to reclaim 92% of payments and apply for an advance if you are unable to make the payments.

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