This article explains what to do if you want to resign from your job during pregnancy, or if you do not wish to return to work after maternity or shared parental leave. It also explains how resignation may affect your rights to maternity and shared parental leave and benefits. The principles outlined in this article also apply to adoption leave and Statutory Adoption Pay.
If you would are facing redundancy or dismissal, please see our other articles on:
- Dismissal during pregnancy, or maternity, adoption or shared parental leave
- Redundancy while pregnant, or on maternity, adoption or shared parental leave
If you wish to resign during pregnancy, or do not wish to return to work after maternity or shared parental leave, you should resign giving notice in the usual way.
Your employment contract should say how much notice you should give your employer. If there is nothing in your contract, you need to give at least a week’s notice (if you have been employed for more than a month).
Ordinarily, your job will end at the end of your notice period, and you remain employed during this period. You will continue to accrue benefits such as annual leave, and you can also take sick leave during your notice period.
However, your employer may choose end your employment straight away and give you pay in lieu of notice, instead of asking you to work during your notice period. In order to give pay in lieu of notice, your employment contract should specify that your employer has this right.
When should I time my notice if I don’t want to return to work after maternity or shared parental leave?
If you are on maternity or shared parental leave, you should think carefully about when you would like your employment to end.
If you resign during your leave period, you do not have to go back to work as long as the length of leave you have remaining is equal to or greater than your notice period. However, if you resign too early, you may miss out on benefits that accrue during maternity leave, such as annual leave.
Similarly, if wait until the last day of your leave to resign, your employer can ask you to work your notice period. You may be able to agree with your employer to take carried over annual leave during your notice period. However, your employer does not need to agree and can pay you in lieu once you resign.
If you do not wish to return to work at all, a good option may be to time your resignation and notice period with the end date of your leave period. For instance, if you have a 4 week notice period, you can give notice 4 weeks before the end date of your maternity or shared parental leave.
Rights to statutory leave and pay
If you resign while pregnant, you will not be entitled to take maternity leave, but you may still be entitled to pay. If you want to claim Statutory Maternity Pay (SMP), you need to still be employed by the end of the 15th week before the week your baby is due (called the ‘qualifying week’). If your job ends before this week, you will not be entitled to SMP, but you may be entitled to Maternity Allowance instead.
If you resign during maternity leave, and during the 39 week maternity pay period, you will be entitled to be paid any remaining SMP or Maternity Allowance.
Similarly, if you you resign during shared parental leave, you are entitled to be paid any remaining Shared Parental Pay (ShPP) for the leave already booked. However, if you resign before the leave begins, you will not be entitled to take shared parental leave or ShPP because a condition of the leave is that you are still employed at the start of the leave period.
Do I need to repay any maternity or parental leave pay if I resign without returning to work?
You do not have to repay any of your SMP, ShPP or Maternity Allowance if you resign.
If you received enhanced maternity or parental pay over and above the statutory entitlement, your employer may ask you to repay this if you resign within a certain period of time after taking maternity or shared parental leave.
However, you would only have to repay the topped up portion of the maternity or parental pay, and only if it is stated in your contract or agreed in advance with your employer before you started your leave. They can deduct any enhanced pay from money that they owe you from outstanding wages or annual leave. But your employer cannot ask you to pay back any statutory pay.
If this applies to you, a good option might be to return to work for a short period after maternity or shared parental leave and resign at a later date in order to avoid repaying enhanced pay. You are counted as being back at work if you are on annual or sick leave, but you should check the terms of the enhanced pay carefully.
Payments during notice period
On resignation, you are entitled to be paid for any outstanding annual leave that has accrued during maternity leave up to the end of your notice period.
You also may be entitled to notice pay. If you resign while you are pregnant and before the start of your maternity or shared parental leave, you are entitled to be paid your ordinary contractual wages for notice period.
If, however, your notice period covers a period of your maternity or shared parental leave, notice pay is a complex issue and the rules are not clear. How much pay you are entitled to depends on whether your contractual is at least one week longer than your statutory notice period.
By law, your employer must give you a minimum amount of notice – this is known as statutory notice. How much you get depends on how long you’ve been employed. If you have been employed by your company for 2-12 years, you will get one full weeks’ notice for every year you have worked for the company up to a maximum of 12 weeks.
However, most contracts will have a different period of notice – this is called contractual notice.
Your employer should give you whichever notice period is longer.
If your contractual notice period is longer
If your contractual notice period is at least 1 week more than the statutory notice period, your employer only has to pay SMP or ShPP during your notice period (for the weeks that you are entitled to it).
For instance, if you entitled to 4 weeks’ contractual notice and 3 weeks’ statutory notice, your employer does not need to pay you notice according to your contractual wages for parts of your notice period that you are on statutory leave.
Your employer only has to pay your notice according to your contractual wages for periods that you would have been working, plus your full SMP/ShPP/SAP entitlement.
If your statutory notice period is longer
If your contractual notice period is at least 1 week less than the statutory notice period, then you would be entitled to full pay for the notice period according to your contractual wages.
If you are receiving SMP or ShPP for some or all of this period, then this would be included in any notice period you would receive.
For instance, if you are entitled to 2 weeks’ contractual notice, and 3 weeks’ statutory notice, you would be entitled to your full pay for 3 weeks less any SMP or ShPP payments you will be entitled to during that period.
You should still receive your full SMP/ShPP/SAP entitlement.
If your employer gives you pay in lieu of notice
If your contract allows your employer to give pay in lieu, your employer can deduct your SMP or ShPP from the payment. But they must still pay your full SMP or ShPP entitlement.
If your contract does not allow your employer to give you pay in lieu, and they want to pay you in lieu anyway, they cannot deduct your SMP or ShPP and should give you full notice pay plus your full SMP or ShPP entitlement.
Because the law is not clear, many employers choose to pay full notice pay plus SMP or ShPP. If this is not the case, and you are unclear about your employer’s calculation, you should seek advice.
This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.
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