Statutory Maternity Pay

Last updated: 13 Apr 2021

When you are employed and take time off to have a baby, you may be eligible for Statutory Maternity Pay (SMP) or your employer may also offer enhanced maternity pay.

This article provides an detailed breakdown of Maternity Allowance, eligibility requirements, how much you can expect to receive, and where to go for more information. An easy and quick way to find out what maternity pay you are entitled to is to use the Government Calculator.

This article covers:

What is Statutory Maternity Pay?

Statutory Maternity Pay (SMP) is a weekly payment made by employers to their employees who have a baby and are on maternity leave. Agency workers may also be entitled to SMP. If you are not employed or an agency worker in your pregnancy you cannot get SMP, but you may be able to get Maternity Allowance.

SMP is paid for a maximum period of 39 weeks. If you qualify for SMP, you can receive it whether or not you intend to return to work for your employer.

In addition to SMP, your employer may pay you enhanced maternity pay, which might have different conditions and may be closer to the amount of your normal wage. Your employer does not have to pay more than SMP, unless you have a contractual right to extra maternity pay, but they cannot pay you less than SMP if you are eligible for it.

Am I eligible for Statutory Maternity Pay?

To qualify for SMP, you have to satisfy two basic rules:

  • the continuous employment rule
  • the earnings rule

You must also tell your employer when you want your SMP to start and provide medical evidence of the date your baby is due (your MATB1 form).

The continuous employment rule

You must have been employed by your employer for a continuous period of at least 26 weeks into the qualifying week (which is the 15th week before the week in which the baby is due). This period must include at least one day of employment in the qualifying week.

Continuous employment usually means employment by the same employer without a break. If you change jobs during your pregnancy, or you started working for your employer after you became pregnant, you are unlikely to qualify for SMP.

The earnings rules

Your average gross weekly earnings must be at least equal to the lower earnings limit for National Insurance (NI) purposes. In April 2021-22, this is £120 per week.

As a general rule, your earnings will be averaged over a period of at least 8 weeks up to and including the last pay day before the end of the qualifying week. This period is called the ‘relevant period’.

An easy and quick way to find out if you are eligible for SMP is to use the Government Calculator, or you can read our article on Calculating maternity pay.

How much is Statutory Maternity Pay?

SMP is paid for 39 weeks:

  • During the first six weeks, you will receive 90% of your average pay. This is based on your earnings during the eight weeks or two months before your qualifying week (the ‘relevant period’).
  • During the remaining 33 weeks, you will receive the flat rate (£151.97 per week) or 90% of your average earnings, whichever is lower. 

An easy and quick way to find out how much SMP you can receive is to use the Government Calculator, or you can read our article on Calculating maternity pay.

Frequently asked questions

Below are some of the most common questions we get on our helpline about Statutory Maternity Pay (SMP).

How do I claim SMP?

Your employer is responsible for paying your SMP or giving you written reasons why you are not entitled in an SMP1 form.

To get Statutory Maternity Pay (SMP) you must give your employer your MATB1 form at least 28 days before you wish to start your pay. In practice many women give notice in writing for maternity leave and pay together by the 15th week before the baby is due, so you should do this if at all possible. There is a sample letter you can use.

What if I leave employment before maternity leave?

You are entitled to SMP even if you leave employment (for whatever reason), as long as you were still employed in the 15th week before your baby is due and you meet the other conditions.

SMP is never repayable if you leave employment, so if you decide not to return to the same job after your maternity leave, you do not have to pay any SMP back.

What if my employer closes the businesses before I go on maternity leave?

You can still be entitled to Statutory Maternity Pay (SMP) if you are otherwise eligible and you are still employed by your employer in the 15th week before your expected week of childbirth.

If your employer has ceased to trade or made your redundant, it will remain liable to pay any outstanding SMP until your entitlement to SMP is fulfilled or ends. Your employer should be able to reclaim a minimum of 92% of the SMP paid to you from HMRC.

If your employer has become insolvent, HMRC will pay you your SMP entitlement. In which case, you should contact HMRC for guidance.

I am an agency worker, can I get SMP?

If you are an agency worker, you can qualify for SMP in the normal way. You can check the rules for entitlement to SMP. You should also check that you are definitely an agency worker, as some people may actually be employees.

There are also some specific rules which may help you to qualify. If you were absent from work because your agency is unable to find you work in a particular week, but you returned to work for them later, that week still counts towards your 26 weeks of continuous employment. So do weeks when you were not available for work because of sickness or injury.

If your employer offers you work for no more than 26 weeks at a time, at least twice a year, and usually offers the work to people who have worked for them recently (for example, if you are a supply teacher), then even if you do not return to work after a period of sickness or time off due to pregnancy, that period may still count towards your 26 weeks of employment.

What if I don’t qualify for SMP?

If you are not entitled to SMP, you may be entitled to Maternity Allowance or certain benefits. See our page on Maternity pay and benefits.

What if I leave employment before maternity leave?

You are entitled to SMP even if you leave employment (for whatever reason), as long as you were still employed in the 15th week before your baby is due and you meet the other conditions.

SMP is never repayable if you leave employment, so if you decide not to return to the same job after your maternity leave, you do not have to pay any SMP back.

Can I continue to get SMP if I go back to work?

If you go back to work for your old employer or if you start working for a new employer after the birth, your SMP entitlement stops from the beginning of the week in which you starts such work.

There are some exceptions on work during maternity leave – such as self-employment work – that mean you may be able to work while still receiving SMP.

What if my employer refuses to pay SMP?

If you and your employer can’t agree on whether you qualify for SMP or the amount of SMP you should receive, you should double check your calculations using the Government Calculator. Ask your employer to explain their reasoning and their calculations. If your employer thinks you aren’t entitled to SMP at all, they should issue you with an SMP1 form.

If you still can’t agree, you can contact the HRMC Statutory Payment Disputes Team. HMRC has overall responsibility for the administration of statutory payments. Complaints about entitlement must be submitted to HMRC’s Statutory Payments Disputes Team within six months of the issue arising.

What if I work for two employers?

If you have more than one employer, you can get SMP twice if you meet the eligibility conditions for both emploeyrs. You can stop and start your maternity leave and SMP from different employers at different times if you wish. 

See our article on Maternity leave and pay if you have more than one employer.

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.


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.