It is automatically unfair to dismiss an employee on pregnancy-related grounds. Where the employment ends because of genuine redundancy or because the woman’s fixedterm contract has come to an end during the maternity leave period, the employee must be offered any suitable available vacancy.
An employee is eligible to take up to 52 weeks maternity leave. The first 26 weeks is known as “Ordinary Maternity Leave” with the remaining 26 weeks known as “Additional Maternity Leave”. The first 39 weeks are paid with the remaining 13 weeks unpaid.
A pregnant employee will qualify for SMP if they have been employed by their employer for long enough and have earnt over the earnings threshold – the earnings threshold is linked to the National Insurance threshold so can change each tax year. The qualifying conditions are as follows:
Statutory Maternity Pay (SMP) is treated as earnings so is subject to deductions for tax and National Insurance contributions.
There are two rates of SMP as follows:
92% of the SMP paid is reclaimable from HMRC. However, some employers may be able to reclaim 103% if they qualify for “Small Employer’s Relief” – to qualify, an employer must have paid £45,000 or less in Class 1 National Insurance contributions in the last complete tax year before her Qualifying Week If an employer cannot afford to make the payment of SMP, they may be eligible for funding which can be applied for via the HMRC website.
If an employee works for the company for any week or part week during their Maternity Pay Period, then SMP is not payable for the whole week in which the work was done. The exception to this is an employee may work for up to 10 “Keeping In Touch (KIT)” days for which she is paid in full.
If an employee resigns or is dismissed (for whatever reason) during her Maternity Pay Period, she must continue to be paid until her entitlement ends. This is unless she takes up employment with another employer in which case her SMP must stop with the last weekly payment immediately before she starts with the other employer.
The employee will continue to accrue holiday entitlement as if she were at work.
Any other non-cash benefits which were provided to the lady prior to her maternity leave must continue throughout her maternity leave.
Employer pension contributions should be based on the salary before the lady went on maternity leave, but employee contributions are based on the ladies actual earnings.
Similar rules apply for statutory adoption leave
An employee will qualify for Statutory Paternity Leave and Pay (SPP) if their partner is having a baby, they are adopting a child or having a baby through a surrogacy arrangement.
Employees can choose to take either 1 or 2 weeks consecutively. The leave cannot start before the birth and must be finished within 56 days of the birth – these rules are different for employees who are adopting and can be found on the HMRC website.
To qualify for SPP, the employee must satisfy certain qualifying conditions:
Statutory Paternity Pay is currently payable at the lower of £151.97 per week or 90% of the employee’s average weekly earnings 92% of the SPP paid can be reclaimed from HMRC in the same way as Statutory Maternity Pay.
The right to paternity leave/pay is not available if the eligible employee requests Shared Parental Leave instead (see below).
Shared Parental Leave allows eligible mothers and their partner to take it in turns to use the remaining Maternity Leave (up to a maximum of 50 weeks minus any weeks taken by the mother) and any remaining SMP (up to a maximum 37 weeks minus any SMP weeks already taken). The rules around SPL and ShPP are complex and are dependent on whether the parents are birth parents, adopters or having a child through surrogacy. There is a certain amount of HR admin to be completed around SPL and ShPP so further details can be found on the .gov.uk website.
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