How much entitlement do employees get?
That’s 26 weeks of Ordinary Maternity Leave (OML) and 26 weeks of Additional Maternity Leave (AML). Note that this distinction doesn’t relate to pay. Its significance is that the employee has different rights depending on what stage of Maternity Leave they’re at.
During their pregnancy, they’ll also be entitled to ‘reasonable’ paid time off during working hours to recover from pregnancy-related illness, or to attend antenatal appointments, including travel time.
An employer is required to confirm the start and end date of the Maternity Leave, and any Statutory or Contractual Pay. This is required in writing, by law, within 28 days.
The earliest the employee can start their leave is 11 weeks before the expected week of childbirth (EWC). And the latest they can start leave is the day after the baby is born.
If an employee is absent from work wholly or partly due to pregnancy during the 4 weeks before the week the baby is due, OML starts automatically.
So you can effectively start their maternity leave early – obviously after letting your employee know.
In the case of a premature birth, their leave starts the day after the baby is born. Please note, an employee must take a minimum of two weeks’ leave after the birth of their child - or four weeks if they work in a factory. This is known as Compulsory Maternity Leave and you must not, under any circumstances, allow them to work during this time.
If the employee has taken more than 26 weeks of maternity leave, they’re on Additional Maternity Leave. They have the right to return to the same job unless it’s no longer available. In this case, you may offer them a slightly different role, but they’re entitled to return to a similar job on the same terms as they left (i.e. the same pay and benefits).
The original role still exists - for example if it has just been given to someone else
The original role would still exist if the employee hadn't gone on maternity leave
The new role isn't something the employee could do
The new role has worse conditions or pay than the original role
An employee is entitled to return to the same job when taking Ordinary Maternity Leave (the first 26 weeks of leave). Their pay and conditions must be the same as, or better, than before.
If the employee wants to change their return-to-work date, they can but they need to give you 28 days’ notice if possible.
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In the tragic instance the baby is stillborn after 24 weeks of pregnancy, the employee will receive full maternity pay and leave.
If the baby passes away in the womb before 24 weeks, legally this is treated as a miscarriage and the employee isn’t entitled to SML or SMP. Instead, an employer can offer them time off as compassionate leave or sick leave.
If the baby is born at any time during pregnancy but then dies, the employee should still be able to take maternity leave.
They may also qualify for bereavement pay. Seek further HR advice in this instance.
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