One of the most common questions we receive on our helpline is whether you can work during maternity or statutory family leave (Adoption or Shared Parental Leave) without ending your leave or pay early. This article sets out the rules for working while on statutory family leave, and answers frequently asked questions.
The general rule is that working during maternity leave or other statutory family leave will end your leave and stop your statutory pay. For instance, working during maternity leave for your employer will end your leave and stop you Statutory Maternity Pay (SMP) or Maternity Allowance (MA) payments. However, there are some important exceptions, which are detailed below.
It would be very risky to work for your usual employer on a self-employed basis as it would probably 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 statutory 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 SMP/SAP/ShPP. However, this doesn’t apply to those on MA.
If you are on MA, you can only work up to 10 days (Keeping in Touch (KIT) days) without it affecting your pay. Any work you do above 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.
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’, or in the case of adoption, the 15th week before the week you were notified of being matched with your child) then it will not affect your SMP/SAP/ShPP if you work for this employer while on leave with another employer. 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 want to work for another employer, but you did not work with this employer in the 15th week before the week the baby was due (or in the case of adoption, the 15th week before the week you were notified of being matched with your child), then it will stop SMP/SAP/ShPP from any employer who is paying it.
You should tell the employer paying you SMP/SAP/ShPP of 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.
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 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 have earned at least £120 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 up to 10 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.
A KIT or a SPLIT day is a normal calendar day, whether you work a full day or just an hour you will have used a KIT/SPLIT day.
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. It may also affect your entitlement to remain on maternity leave. 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, 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.