Working during maternity and family leave and while receiving pay
One of the most common questions we receive on our helpline is whether you can work during maternity, adoption or shared parental leave without ending your leave or pay. This article sets out the rules for working while on these forms of statutory family leave, and answers frequently asked questions.
The general rule is that working during maternity or other statutory family leave will stop your statutory pay. For instance, working during maternity leave for your employer will stop your Statutory Maternity Pay (SMP) or Maternity Allowance (MA). Working for a new employer after the birth of your baby will also end your SMP or MA.
However, there are some important exceptions, which are detailed below.
If you are on maternity or family leave and getting SMP, Statutory Adoption Pay (SAP), or Shared Parental Pay (ShPP), you can work on a self-employed basis without it affecting your pay.
This should be genuine self-employment. Usually this means you work for yourself, on behalf of customers or clients and are responsible for paying your own taxes on income. If you are not sure whether you are considered self-employed, we have a helpful article on employment status. You can also contact our helpline for specific advice.
It would be very risky to work for your usual employer on a self-employed basis as it would not look like genuine self-employment. This is particularly so if the work you would be doing is just the same as the work you did as an employee.
Remember that you are still bound by your employment contract while on maternity or family leave, so you need to check if your contract allows you to do self-employed work. Not all contracts allow employees to work elsewhere.
If your contract normally lets you work elsewhere, your employer cannot have a special clause preventing you from doing so during maternity leave. To do so would be maternity discrimination.
Can I do self-employed work while on Maternity Allowance?
Ordinarily, you can work on a self-employed basis without it affecting your statutory pay. However, this doesn’t apply to those on Maternity Allowance (MA).
If you are on MA, you can only work up to 10 Keeping in Touch (KIT) days without it affecting your pay. Any work you do in addition to the 10 days, whether employed or self-employed, will lead to you being disqualified from claiming MA for at least the number of days you worked in excess of those 10 days.
Whilst you can’t work while you are receiving MA (apart from KIT days), you can still receive an income or wages, so if your business is generating an income for you while you are in receipt of MA, as long as you are not actually working, this should not disqualify you from receiving MA.
Working for a second employer
If you worked for an employer in the 15th week before the week your baby was due (your ‘qualifying week’), it will not affect your SMP/SAP/ShPP if you work for this employer while on leave with another employer. In the case of adoption, the relevant period is the 15th week before the week you were notified of being matched with your child.
If you work for a second employer while you are on maternity leave, but before the birth of your baby, your SMP will also not be stopped. See our article on maternity rights if you have more than one job.
If you work for another employer, but you did not work with this employer in the qualifying week, it will stop your statutory pay from any employer who is paying it. However, it may not necessarily stop your maternity leave unless you return to work for the employer you are on leave with.
You should tell the employer paying you SMP/SAP/ShPP about any work you do for another employer.
I have two employers and both pay me SMP, can I return to work at different times for different employers?
Yes – if you qualify for SMP for both jobs, you can start and finish your maternity leave and SMP in both jobs at different times without it affecting your leave or pay from either employer. See our article on maternity rights if you have more than one job.
I have started a new job with a new employer after my qualifying week. Who pays my SMP?
You may be eligible for Statutory Maternity Pay (SMP) from your old employer if (a) you were employed by your old 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); and (b) have earned at least £123 per week (gross) in the 8 weeks leading up to the qualifying week.
You can start work for a new employer and still receive SMP from your old employer before the birth. However, once your baby has been born you cannot continue to get SMP from your old employer if you do work for a new employer, unless you were employed by the new employer in the 15th week before your baby was due.
After your baby is born, if you return to work with a new employer, you should inform your old employer and your SMP payments will stop.
Keeping in Touch (KIT) days
Employees on maternity or adoption leave may work for up to 10 Keeping In Touch (KIT) days without their leave or pay stopping.
Employees on shared parental leave (SPL) are allowed to work up to 20 Shared Parental Leave in Touch (SPLIT) days without their leave or pay stopping.
Where you can work on a KIT or SPLIT day depends on the kind of maternity pay you are getting. If you are getting SMP, SAP or ShPP, you can only work a KIT or SPLIT for the employer who is paying you SMP, SAP or ShPP. If you are getting MA, any work, whether self employed or for any employer, counts as a KIT day.
KIT days can only take place if both you and your employer want and agree them. You cannot be made to work during your maternity leave and nor can you insist on working during your maternity leave.
What counts as a KIT or SPLIT day?
A KIT day is a normal calendar day – so, whether you work a full day or just an hour, you will have used up a KIT day.
A day’s work will be the normal hours or shift patterns at your workplace – so if you normally work 12 hour shifts, a KIT day could be a 12 hour shift.
You will need to agree with your employer when you take a KIT day, what type of work you will do and how long your KIT day will be.
Should I be paid for working a KIT or SPLIT day?
During KIT/SPLIT days, you can carry out work for your employer and may be paid for this. The rate of pay is a matter for agreement between you and your employer, and would normally be the contractual rate of pay, depending on the work done and what is agreed.
You should agree to payment in advance with your employer. The regulations on KIT days do not say anything about how much an employee should be paid for working a KIT day and therefore the rate of pay is a matter of agreement between you and your employer.
There is no obligation for your employer to pay you anything for KIT days (other than SMP or the national minimum wage). To incentive employees to undertake KIT days, many employers will pay employees their normal rate of basic pay on KIT days or give them the equivalent paid time off in lieu (to be used when the employee returns from maternity leave).
If you are still receiving SMP when you work a KIT Day, you employer must pay your SMP that week as normal, but it will be a matter of agreement between you and your employer as to how much you will get paid on top of SMP. Please be aware that most employers will wish to offset from any KIT day pay what SMP you will receive for that day or that whole week, rather than paying you SMP plus full basic pay for the KIT day.
If you are unhappy with the rate of pay your employer is offering you for any KIT day you are under no obligation to accept it and can decline to work any further KIT days. Your employer cannot lawfully penalise you for deciding not to accept their payment proposal or declining to work KIT days.
What happens if I do more than 10 KIT or 20 SPLIT days?
If you are on SMP, SAP or ShPP, you will lose a week of pay for each week that you do any work for your employer above your 10 KIT or 20 SPLIT days. Statutory maternity leave will also come to an end and you will be regarded as having returned to work. You should seek advice if you want to do this.
If you are on MA, your MA will stop being paid if you work more than 10 days (whether for an employer or as self-employed). However, your MA period continues to run. If you are an employee, it may also affect your right to continue on maternity leave. If you are not an employee, you may be able to restart your MA claim, depending on how long you have been disqualified for. You will be disqualified from receiving MA for at least the number of days that you worked in excess of 10 days.
Can I take 10 KIT days on maternity and later take 20 SPLIT days while on shared parental leave?
Yes, you can. If you are on maternity leave and later take a period of shared parental leave, you can use up to 10 KIT days whilst on maternity leave and separately take up to 20 SPLIT days during your shared parental leave. The entitlements are separate.
This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.
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.
We cannot provide advice on employment rights in Northern Ireland as the law is different. You can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.