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Employment Law - Statutory Maternity Leave


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10 March 2011

Within the employment realm, there are a whole set of rights afforded to pregnant women including, generally, paid time off for antenatal care, maternity leave, maternity pay benefits and protection against unfair treatment or dismissal. The focus of this article is Statutory Maternity Leave.

Women are under obligation to notify their employer that they are pregnant at least 15 weeks before the beginning of the week their baby is due, or as soon as possible. The employer should also be notified as to when the woman intends to begin her Statutory Maternity Leave and Pay.

All pregnant women, however long they have been in their jobs, are entitled to reasonable time off work for antenatal care. Any time off will be paid at the normal rate of pay and any employer that refuses to do this is in breach of the law. An employer has the right to ask for evidence of antenatal appointments from the second appointment onwards.

Statutory Maternity Leave

Regardless of whether a woman decides to take SML, it is mandatory that she take two weeks off after her baby is born, or four weeks if she works in a factory. This is called compulsory maternity leave. To allow a woman to return to work before this time is a criminal offence.

Employees have the right to 26 weeks of Ordinary Maternity Leave (OML) and 26 weeks of Additional Maternity Leave (AML) making one year in total. The combined 52 weeks is known as Statutory Maternity Leave (SML).

To qualify for SML a woman must be an employee (as opposed to an independent contractor). If she is an employee and she gives her employer the correct notice, she can take SML despite the length of time she has been employed with that particular employer, and despite the number of hours she works or pay she receives.

SML can be commenced anytime from 11 weeks before the beginning of the week when the baby is due. If a woman is off work due to pregnancy related reasons within four weeks of the expected birth date, the employer can make her start her SML then.

While a woman is on SML, her employment terms and conditions are strictly protected. The woman keeps her normal employment rights and benefits (excluding wages) throughout all of her SML. This may include benefits such as a company car or a mobile phone, however, if the benefit is provided for business use, an employer may be able to suspend it.

All entitlements to paid holiday are built up throughout SML regardless of whether the employment contract states the woman is entitled to more than the statutory minimum.

It is automatically unfair and automatic sex discrimination for an employer to select a woman for redundancy or dismiss her for a reason connected with maternity leave, birth or pregnancy.

An employer can make a woman redundant while she is on maternity leave if they can fairly justify their choice. For example, an employer might close a department of their business and make all employees in that section redundant. However, if an employer makes general staff cuts, they cannot make a woman redundant because she is on or is about to take maternity leave.

If a woman is made redundant whilst on SML then she has the right to be offered any suitable alternative job in the company. This is even if there are other employees that might be more suitable for the job. If a woman is made redundant or dismissed during SML her employer must provide a written statement explaining the reasons for their decision.

During SML an employer is entitled to make reasonable contact with a woman for business related reasons which could be to provide updates on any significant changes in the workplace or any opportunities for promotion or job vacancies, for example.

A woman can work up to ten days' during her SML without losing her (SMP), Maternity Allowance or ending her leave. These are called keeping in touch days - and may only be worked if both the woman and her employer agrees to it.

When returning to work after OML (the first 26 weeks of SML), a woman has the right to the same job and the same terms and conditions as if she had not been away.

This also applies when a woman returns after AML (the last 26 weeks of SML).

It is correct for an employer to assume that a woman will take all 52 weeks of her SML. If she opts to take the full 52 weeks, it is not mandatory for her to give notice that she is coming back. If she decides to return earlier, for example, when her SMP ends, she must give at least eight weeks' notice. If she fails to do this, an employer can insist that she does not return until the eight weeks have passed. A woman is obligated to inform her employer if she is returning to work early or wants to change the date of her return. If she decides not to return to work at all, she must give the employer notice in the normal way.

Waheedan Jariwalla ( is a US attorney and a Solicitor who specialises in contentious and non-contentious issues.

About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.

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Article Published/Sorted/Amended on Scopulus 2011-03-16 13:21:02 in Legal Articles

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