Understanding maternity pay can seem like a HR and legal labyrinth, but here are 5 important things you really need to know.
Statutory Maternity Pay (SMP)
You may think that everyone who goes on maternity leave in your business will receive SMP, but in fact, there are a number of conditions that need to be fulfilled.
The employee must:
- have worked for you continuously for a minimum of 26 weeks when they reach the 15th week before the expected week of the child’s birth
- given you the right amount of notice
- provided evidence of their pregnancy (usually in the form of a certificate from their midwife or doctor)
- earned at least £112 a week in the last eight weeks (if paid weekly) or two months (if paid monthly) before the end of the qualifying week. The qualifying week is the 15th week before the week the baby is due.
- be pregnant 11 weeks before the start of the expected week of the birth or they have already given birth
- not be working.
These conditions mean that some workers in the business may be eligible for SMP even if they do not have the right to statutory maternity leave.
Under the statutory scheme, they are entitled to up to 39 weeks of pay. They will be paid 90% of their average weekly earnings for the first 6 weeks. For the next 33 weeks, they are paid either to £140.98 or 90% of their average weekly earnings, whichever is lower.
SMP is paid by employers, but you can reclaim 92% to 100% back from HMRC.
Maternity Allowance
Employees who do not fulfil the criteria necessary for SMP may be eligible for Maternity Allowance.
This is different to SMP in a number of ways:
- It is paid by the government, not employers.
- The eligibility requirements are not the same. To be eligible for Maternity Allowance, they must have been employed or self-employed for a minimum of 26 weeks of the 66 weeks before the expected week of the birth and have earned, on average, at least £30 a week in any 13 weeks of those 26 weeks.
- There is no staggered timetable. They receive 90% of their average weekly earnings or £140.98 week (whichever is lower) for up to 39 weeks.
Contractual maternity pay
You may wish to make more generous provisions than those required by law in order to encourage your staff to come back to work after maternity leave. There are many ways you can do this, for example you may offer full salary for a certain length of time or provide a bonus.
It will be up to you whether you offer these as a contractual right or only offer it on a discretionary basis, taking into account individual cases. You should be careful to not discriminate when making decisions in a discretionary way as this could pave the way for legal action.
If someone decides to not return after maternity leave, you can include a provision in your maternity pay policy for them to give back the enhanced contractual pay they received. Remember, you cannot ask them to repay their SMP part of the payments, only the additional amount paid by you.
Antenatal appointments
By law, a pregnant employee is entitled to a reasonable amount of paid time off during their working time to attend antenatal appointments made on the advice of a registered medical practitioner.
Employees have the right to be paid their normal hourly rate for the entire duration of the time off necessary to attend the antenatal appointment, which includes travel and waiting time.
KIT days
An employee may work up to 10 days during maternity leave through Keeping In Touch days (KIT) days, as long as the employee agrees to it and the employer allows it.
The law does not lay down provisions for paymentfor working a KIT day, therefore the employer will need to decide how the employee is paid for any work on these KIT days. Even if the employee does not work for the full day, for example they just come in for a two hour team meeting or staff training, this will still be considered as one KIT Day.
For more advice and guidance on this topic, please contact the British Sandwich Association Advisory Service on 0845 226 8393 and quote “British Sandwich Association” and your membership number. Alternatively, please email