Maternity Leave

Last updated: 25 Mar 2021

All employees are entitled to 52 weeks of maternity leave on giving birth to a baby, regardless of length of service or the number of hours worked.

Your maternity leave is divided into 26 weeks Ordinary Maternity leave (OML) and 26 weeks Additional Maternity Leave (AML). You have the right to return to your job after your maternity leave, depending on how much leave you have taken.

Your employment contract continues while you are on maternity leave and you can continue to benefit from some of your rights under your contract. 

Giving notice to take maternity leave

To take maternity leave you must give your employer written notice in or before the 15th week before your due date (your ‘qualifying week’. This is usually week 25 of pregnancy. You must tell your employer that you are pregnant, your Expected Week of Childbirth (EWC), and the date you wish to start your maternity leave. You should also give your employer your MATB1 certificate, which is usually given to you by your midwives.

Your employer cannot refuse your maternity leave, but they can refuse you Statutory Maternity Pay (SMP) if you give notice too late without a reasonable excuse.

You can specify in your notice the dates that you would like your maternity leave to start and end. The earliest you can start your maternity leave is 11 weeks before your due date, and the latest is the day after your due date. Your employer should assume that you wish to take 52 weeks of maternity leave, unless you give notice otherwise.

Sometimes women want to change their return date, to return to work earlier or later than planned. To do so, you must give eight weeks’ notice before the original return date or the new return date, whichever comes first. You can change your return date more than once (as long as you give enough notice). There is a sample letter changing the return date that you can use.

You are not allowed to work in the two weeks after childbirth (or four weeks if you work in a factory). This period is known as Compulsory Maternity Leave.

If you meet the qualifying conditions you and/or your partner may be able to share up to 50 of the 52 weeks’ leave to which you would be entitled to as maternity leave. This is known as Shared Parental Leave.

When can I start maternity leave?

The earliest you can start your maternity leave and pay is 11 weeks before your baby is due, unless you give birth sooner. It is up to you to decide when you wish to start your maternity leave. You can work right up to the birth if you wish.

If you are off work with a pregnancy-related absence (this could include a health and safety suspension or pregnancy-related sickness) in the four weeks before the week the baby is due, your employer automatically begin your maternity leave. This is the only circumstance where your employer has any say into when your maternity leave starts.

If you give birth before you start maternity leave, your leave and pay will start the day after the birth. Statutory Maternity Pay (SMP) or Maternity Allowance (MA) will start on the same day as your maternity leave, which would be the day after your first day of pregnancy-related absence or the day after the birth.

Note: You should notify your employer as soon as reasonably practicable if you are absent for a pregnancy-related reason in the four weeks before your expected week of childbirth or if you give birth before you intended to start your maternity leave.

How will I be paid during maternity leave?

Most women will be eligible for maternity pay. There are two types of maternity pay – Statutory Maternity Pay (SMP) and Maternity Allowance (MA). Both are paid for a total of 39 weeks. 

If you qualify for maternity leave, the last 13 weeks are usually unpaid. You should check in each job you have to see if you are entitled to any contractual maternity pay.  If you are not entitled to SMP, you may be entitled to MA. And if you are not entitled to MA, you might be able to claim Universal Credit or Employment and Support Allowance.

Always check your contract of employment as it may offer you better rights than the legal minimum. For instance, your employer may offer enhanced maternity pay.

Frequently asked questions

Below are answers to some of the most common questions that we receive on our helpline.

I am on a fixed term contract. Can I still get maternity leave?

Generally speaking, a temporary or fixed term contract has no special status in law. If you are an employee on a fixed term contract, you will have all the rights of a permanent employee. In fact, it is unlawful to treat fixed term workers less favourably than permanent workers. You have all the maternity rights of ordinary employees.

If you are on a fixed term contract that is not renewed, it is still a dismissal under law, and has the potential to be an unfair dismissal, depending on the circumstances.

If your contract ends and is not renewed, you need to look carefully at the reasons why.  If there is no longer a need for you to do the work, for example because the project has ended, you have been made redundant. If you have two years’ continuous service with your employer you will be entitled to statutory redundancy pay. You will also be entitled to statutory notice pay, and payment for untaken annual leave. If you are made redundant while on maternity leave, you have special rights.

If your job still exists, and your contract is not renewed because of your pregnancy or maternity leave, the dismissal is discriminatory and automatically unfair. A woman who is dismissed while pregnant must be given written reasons for her dismissal, so you should ask for reasons in writing.

It is automatically unfair to dismiss a woman because she is pregnant or intends to take maternity leave even if this means that she is unable to work for the majority of the contract, whether because of maternity leave or because of health and safety reasons. If this happens to you, or you believe this has happened to you, you should seek advice.

I am an agency worker. Can I get maternity leave?

The answer to this question depends on whether you are considered a worker or an employee. Most, but not all, agency workers are considered in law to be workers. However, some agency workers are in fact employees of either the agency or the company they are placed with. If you are not sure whether you are an employee or a worker, you can seek advice.

Workers do not have the right to maternity leave, in that they have no right to return to the same job after they have taken time away from work to have a baby. However, you may still be entitled to Statutory Maternity Pay (SMP) provided you met the usual conditions. If you do not qualify for SMP, you may be entitled to Maternity Allowance.

Just because you have no right to maternity leave does not mean you cannot have the time off. If you are an agency worker, you are under no obligation to take work from the agency so you can take as much time off as you like. When you are ready to return to work, you are in the same position as any other agency worker asking the agency to find work for them.

However, you must not be refused work because you have been pregnant or away due to a birth as that would amount to discrimination. If you believe your agency is not offering you work because you are pregnant or recently had a baby, you should seek advice. It is also a good idea to make a note of the hours you were previously given, be clear in the information you provide them about your availability for work, and make a record of the work you are given. If you are in a trade union, they may be able to offer you assistance.

I am self-employed. Can I take maternity leave?

If you are self-employed, you don’t have a right to maternity leave. You may be able to claim Maternity Allowance if you meet certain criteria. 

If you own a limited company and pay yourself a salary through PAYE from the company, you can take maternity leave and could qualify for Statutory Maternity Pay as an employee, provided you meet the usual criteria. For assistance, you can call the HMRC employer’s helpline.

If you work for other companies as a self-employed contractor, you are not entitled to maternity leave, meaning you have no right to return to your job after your absence. However, you are still protected by discrimination law, and if you are not being offered work because you have taken time off to have a child, you may have a discrimination claim.

Occupational Stress Claims

An Occupational Stress Claim is a type of personal injury claim for psychiatric injury arising from stress.

However, workplace stress resulting from coronavirus has not yet been tested in the courts and it is difficult to know what approach will be taken, and any claim will be very fact-specific.

For an Occupational Stress Claim to succeed, an employee will need to prove that:

  • The employer owed a duty of care to the employee not to act carelessly;
  • The employee breached that duty; and
  • That breach caused the employee to suffer an injury.

Duty of Care

An employee is under a duty to take steps to protect an employee from stress at work where it is reasonably foreseeable that the employee is at risk of suffering that kind of harm.

What is foreseeable depends on what the employer knows (or could reasonably be expected to know) about the individual employee and their circumstances. With home working, the question of what the employer knew or ought to have known becomes more complex.

The considerations can include:

  1. The nature and extent of the work done;
  2. Whether the workload was much more than normal for that particular job;
  3. Whether the work is particularly intellectually or emotionally demanding for the employee;
  4. Whether the demands of this employee were unreasonable when compared with the demands of others in the same or comparable jobs;
  5. Whether there are signs that others doing this job are suffering harmful levels of stress;
  6. Signs from the employee of impending harm to health;
  7. Whether the employee has a particular problem or vulnerability;
  8. Whether the employee has previously suffered from illness attributable to stress at work; and
  9. Whether there is reason to think that any recent and uncharacteristic absences from work might be attributable to stress at work, for example, because of complaints or warnings from the employee or others.
    (Hatton v Sutherland [2002]).

The guidance is that the stress must be plain enough for any reasonable employer to realise something should be done about it, but proving foreseeability can often be a difficult hurdle to overcome.

It may even be arguable that in some public sectors (such as the NHS) reasonable foreseeability can be presumed where workers are at greater risk of contracting the virus, but in other sectors, the awareness of the risk of harm may be less clear cut. However, as already mentioned, it is not clear what approach the courts will take to determine issues such as whether psychiatric harm was reasonably foreseeable and whether reasonable steps were taken in light of all the circumstances faced by both the employer and employee. The courts may even be sympathetic to some employers given the difficulties faced, for example, with limited resources or jobs that involve regular direct contact with people suffering from the virus.

Breach of Duty

Once the standard is decided, an employee must also establish a breach of duty, showing that the employer has broken the standard by failing to take reasonable steps to protect the employee from suffering the injury.

What steps were reasonable will depend on the circumstances of each case, and will often involve a balance between the level of risk and severity of likely harm to the employee against the cost and practicability of the proposed step. It will also depend on the sector of employment and considerations of the interests of other employees. It is important not to assume that, just because someone has been injured, there is necessarily a breach.

It is always useful to keep evidence to show what indications of harm were obvious to the employer, what discussions (if any) took place with you and your employer, what options or protective measures were considered but not implemented, and any medical and employment records, in case it becomes necessary to take additional steps at a later stage.

Causation

An employee must also show causation between the employer’s breach of duty and the injury. In other words, that employment-related stress produced a recognised psychological illness or disease.

The illness or disease must be recognised as a medical condition by the World Health Organisation. “Stress” is not a recognised disease, although there are many illnesses that are, for example, psychosis and depression.

Causation may become a particularly difficult issue where an employee has been exposed to COVID-19 at work.

Bringing a Claim

If you are thinking of bringing a claim you should get expert advice to see if you can take legal action and claim compensation. The time limit for bringing a claim is 3 years from the date of the injury suffered or (if later) the date you knew (or could be reasonably expected to know) that the injury might give rise to a legal claim.

The information on the law contained on this site is provided free of charge and does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are advised to obtain specific legal advice about your case or matter and not to rely solely on this information. Law and guidance is changing regularly in this area.