Statutory Maternity Pay and Leave: employer guide

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Statutory Maternity Pay and Leave: employer guide

Entitlement

Statutory Maternity Leave

Eligible employees can take up to 52 weeks’ maternity leave. The first 26 weeks is known as ‘Ordinary Maternity Leave’, the last 26 weeks as ‘Additional Maternity Leave’.

The earliest that leave can be taken is 11 weeks before the expected week of childbirth, unless the baby is born early.

Employees must take at least 2 weeks after the birth (or 4 weeks if they’re a factory worker).

Statutory Maternity Pay (SMP)

SMP for eligible employees can be paid for up to 39 weeks, usually as follows:

  • the first 6 weeks: 90% of their average weekly earnings (AWE) before tax
  • the remaining 33 weeks: £139.58 or 90% of their AWE (whichever is lower)

Tax and National Insurance need to be deducted.

Use the SMP calculator to work out an employee’s maternity leave and pay.

Some employment types like agency workers, directors and educational workers have different rules for entitlement.

Extra leave or pay

You can offer more than the statutory amounts if you have a company maternity scheme. You must make sure your maternity leave and pay policies are clear and available to staff.

If the baby is born early

Leave starts the day after the birth if the baby is born early.

The employee must give you the child’s birth certificate or a document signed by a doctor or midwife that confirms the actual date of birth.

You must write to them confirming the new end date for their leave.

For very premature births where the child is born 15 weeks or more before the due date, you’ll need to calculate SMP using your payroll software (if it has this feature) or work it out manually.

If the baby dies

Employees still qualify for leave or pay if the baby:

  • is stillborn after the start of the 24th week of pregnancy
  • dies after being born

Employment rights

An employee’s employment rights (like the right to pay, holidays and returning to a job) are protected during maternity leave.

You still have to pay SMP even if you stop trading.

Eligibility and proof of pregnancy

Some employees won’t qualify for both leave and pay.

Statutory Maternity Leave

Employees must:

Statutory Maternity Pay (SMP)

Employees must:

  • be on your payroll in the ‘qualifying week’ - the 15th week before the expected week of childbirth
  • give you the correct notice
  • give you proof they’re pregnant
  • have worked for you continuously for at least 26 weeks up to the qualifying week
  • earn at least £112 a week (gross) in an 8-week ‘relevant period’

Use the SMP calculator to check an employee’s eligibility and work out their relevant period, notice period and maternity pay.

There are special rules for some employee situations eg if they leave, become sick or their baby is born before the qualifying week.

Proof of pregnancy

You must get proof of the pregnancy before you pay SMP. This is usually a doctor’s letter or a maternity certificate (known as an MATB1 certificate). Midwives and doctors usually issue these 20 weeks before the due date.

The employee should give you proof within 21 days of the SMP start date. You can agree to accept it later if you want. You don’t have to pay SMP if you haven’t received proof of the due date 13 weeks after the SMP start date.

You must keep records of the proof of pregnancy.

Employees not entitled to SMP may be able to get Maternity Allowance instead.

Notice period

Notice doesn’t have to be in writing unless you request it.

Statutory Maternity Leave

Employees must tell you at least 15 weeks before the baby is expected the date:

  • the baby is due
  • they want to start their maternity leave - they can change this with 28 days’ notice

You have 28 days to write confirming their leave start and end date.

Employees can change their return to work date if they give 8 weeks’ notice.

Statutory Maternity Pay (SMP)

Employees must give you 28 days’ notice.

Late notice

You can’t refuse maternity leave or change the amount of leave employees want to take.

You can delay the start date for leave or pay if the employee doesn’t have a reasonable excuse for giving you the wrong amount of notice. To delay it, write to them within 28 days of their leave request.

Refuse pay form SMP1

You can refuse Statutory Maternity Pay (SMP) if the employee doesn’t qualify. They may be able to get Maternity Allowance instead.

To refuse it, give the employee the SMP1 form within 7 days of your decision. They must get this form within 28 days of their request for Statutory Maternity Pay or the birth (whichever is earlier).

Record keeping

You must keep records for HM Revenue and Customs (HMRC), including:

  • proof of pregnancy - usually a doctor’s note or a MATB1 certificate (a photocopy is fine)
  • the date SMP began
  • your SMP payments (including dates)
  • the SMP you’ve reclaimed
  • any weeks you didn’t pay and why

You must keep records for 3 years from the end of the tax year they relate to, eg by using form SMP2 or keeping your own records.

Help with statutory pay

For financial help with statutory pay, you can:

  • reclaim payments (usually 92%)
  • apply for an advance if you can’t afford payments

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