Are you currently pregnant and wondering what maternity pay you are entitled to as a pregnant woman? This article summarises your rights under the current legislation. If you have issues and need more information, please contact us as soon as possible:
During maternity leave
The contract of employment continues throughout OML and AML, unless either party expressly ends it or, in the case of a fixed-term contract, it expires without renewal. During statutory maternity leave, an employee “is entitled… to the benefit of the terms and conditions of employment which would have applied if she had not been absent”, except for the terms as to remuneration (section 71(4)(a), ERA 1996 and regulation 9, MPL Regulations). Therefore, all her other benefits (such as the accrual of contractual annual leave, health club membership, permanent health insurance or use of a company car) will continue. Any attempt to provide otherwise in the contract (for example, by attempting to limit holiday accrual to statutory holiday only) would be void, as it would infringe both section 71 of the ERA 1996 and the maternity discrimination provisions of the EqA 2010 .
Since the contract of employment is not broken, continuous employment will continue to accrue during OML and AML for the purposes of statutory employment rights, such as calculating any statutory redundancy payment. Continuous service will also accrue for the purposes of any contractual entitlements which are based on length of service.
Remuneration is not payable during OML or AML. The general rule is that a woman on maternity leave is in a unique position and therefore cannot claim equal pay and benefits with a man (or a woman) who is working (Gillespie v Northern Health and Social Services Board  IRLR 214 (ECJ)).
However, an employee will normally be entitled to be paid (subject to agreement) for any “keeping in touch” (KIT) days, and she may also be entitled to be paid any bonus which is awarded while she is on maternity leave.
She has no right to receive sick pay during her maternity leave. This is because sick pay is “remuneration” for the purposes of section 71(5)(b) of ERA 1996 and regulation 9(3) of the MPL Regulations and is therefore excluded from the benefits available to employees during maternity leave (Department of Work and Pensions v Sutcliffe EAT/0319/07).
Statutory maternity pay
An employee will be entitled to SMP where she has both:
- 26 weeks’ continuous employment with the employer up to and including the 15th week before the EWC.
- Average earnings of at least the lower earnings limit for National Insurance during the eight-week period ending with the 15th week before EWC.
SMP is payable for 39 weeks at the following rates:
- The “earnings-related rate” (90% of average earnings) for the first six weeks.
- The “prescribed rate” (or earnings-related rate if lower) for the remainder of the period. For details of the current prescribed rate.
A woman who does not qualify for SMP may qualify for maternity allowance or other social security payments.