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Maternity Leave & Pay
October 2006
Karen Bussell, solicitor with Nash & Co, answers this month’s question
Q We are busy dealing with maternity issues with our own employees and temps. Please explain what maternity pay/leave rights each are entitled to.. How do we ensure pregnant workers/mothers take their annual leave before the leave year expires ?
Maternity Leave
This is a right for employees only – that is an individual who has entered into or works under a contract of employment. The length of entitlement depends on how long she has worked for you.
All employees are entitled to 26 weeks paid Ordinary Maternity Leave (OML) Only those who have been continuously employed for 26 weeks at the beginning of the 14th week before the week in which the baby is expected (the Expected Week of Childbirth or EWC) are entitled to unpaid Additional Maternity Leave (AML) of a further 26 weeks. By the end of the 15th week before the EWC the employee should notify you of her pregnancy, her EWC and the date she intends to start her OML (not before the 11th week before the EWC) You must then write to her setting out the date you expect her back having taken her full entitlement – it is then for the employer, before or during her maternity leave, to give you 28 days notice of any alternative date on which she wishes to return to work.
An employer must take OML for the first two weeks after childbirth, but otherwise can choose how long she wishes to take within her entitlement. Should an employee be absent from work “ wholly or partly because of her pregnancy” in the four week period (starting with a Sunday) prior to the start of the EWC, OML starts the following day. If she gives birth before starting her leave OML begins the following day. “Childbirth” means the birth of a living child or the birth of a child, living or dead, after 24 weeks of pregnancy.
Most temps are classified as workers rather than employees (If in doubt take legal advice on the status of your temps) A worker is not entitled to OML or AML but can choose when she declines work.
Statutory Maternity Pay
SMP is payable to anyone whose earnings attract class 1 NI contributions (Or would if their earnings were high enough) have earned at least the Lower Earnings Limit in the eight weeks (two months if monthly paid) before the qualifying week (15th week before the EWC) who have been continuously working for the same employer (or agency) for the 26 weeks preceding the qualifying week and be working for at least part of that 15th week. SMP is therefore available to some temps. Sickness, annual leave or a period in which the agency does not have work for a temp does not break continuous service, provided she does further work before maternity pay starts.
SMP is payable for up to 26 weeks and is paid at 90% of the employee/ workers average pay for the first six weeks then at a flat rate (currently £108.65) for the remaining 20 weeks.
Paid Annual Leave
Both contractual and statutory leave continues to accrue during OML, but only statutory holiday accrues during AML, unless the contract states otherwise.
The contract of employment may allow the employee to carry over a certain amount of unused contractual leave to the next leave year. If not, the employee would have to bring her maternity leave to an end and take leave to get her contractual holiday pay (Which is usually impractical)
The Working Time Regulations forbid untaken statutory leave to be carried over to the next holiday year, but the position during maternity leave is unclear as Employment Tribunals have been inconsistent. I advise that the employee takes her annual leave entitlement before her OML starts if the leave year will expire during her time off. A temp can also be advised to take the first few days of her period of not working as leave so you can deal with holiday pay before paying SMP.
REC News September 2006
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