The Equality Act 2010 protects employees from pregnancy and maternity discrimination from day 1. An employer can face unlimited fines from an employment tribunal if an employee can demonstrate that they have been treated unfairly.
When the pregnant employee has notified the employer of their pregnancy, communication is paramount. Employers must communicate with the pregnant employee about their health, welfare and eligibility for statutory maternity pay (SMP).
Maternity Allowance
In order to claim SMP or maternity allowance (MA), the pregnant employee must forward a MATB1 form (which is completed by a midwife). The form will give a rough date of when the baby will arrive.
Upon receipt of a MATB1 form, the employer must consult within 28 days to confirm if (a) the employee is eligible for SMP or MA and (b) what date the employee wishes to start their maternity leave. If the employee is not eligible for SMP, the employer must, within 7 days of making their decision, complete a SMP1 form with a reason why the employee is not eligible.
There can be several reasons for not being eligible for SMP.
- Not having enough employment service with the same employer. The employee must have at least 26 weeks service ending with the 15th week before the expected week of childbirth.
- Not earning above the Lower Earning Limit (2019/2020 £118 per week).
- During a ‘qualifying period’ (8 weeks before the employee takes maternity leave) if the employee goes off sick (with a fit note) their maternity pay may be affected because the first 6 weeks of maternity is based on 90% of your average pay during this 8 week ‘qualifying period’.
Employees who are not eligible for SMP are able to claim maternity allowance at either £148.68 for 39 weeks or £27 for 39 weeks (depending on National Insurance Contribution); the job centre will be able to determine/calculate this for the employee. The employee can start their SMP from 11 weeks before the expected week of childbirth.
SMP is calculated as 6 weeks at 90% of your average earnings, thereafter is 33 weeks at £148.68 (2018/2019 rate). An employee can take up to 52 weeks maternity leave and will continue to accrue annual leave.
Should the employee decide to resign part way through their maternity leave, SMP will still continue. However, if an employee resigns and finds new employment SMP should stop. An employee cannot claim SMP and a working salary. Therefore, it is best to pay SMP on a weekly basis. It is not recommended to pay a lumpsum of SMP in case the employer needs to recover SMP as an overpayment due to new work.
Zero hours employees also need to satisfy SMP criteria to be eligible. Though zero hours employees may have gaps in their service (due to sickness, holidays or temporary cessation of work) employers are able to rely on their original continuous employment to calculate eligibility for SMP.
Enhanced Maternity Pay
As for enhanced maternity pay that is included in SMP payments – In light of recent court of appeal decision in Capita Customer Management Ltd v Al and Hextall v Chief Constable of Leicestershire Police [2019] IRLR 695 it is neither discriminatory nor a breach of equal pay to pay women more enhanced maternity pay than men/partners would receive on shared parental pay or adoption leave. The reason being that the health of the mother in connection with pregnancy and childbirth justified differential in pay.
For further information on eligibility for SMP please contact us on 0333 240 7208.
