All pregnant employees, ie those working under a contract of employment, are entitled to take up to 52 weeks of statutory maternity leave (SML) around the birth of their child. Employees automatically qualify for SML - it does not matter how long the employee has worked for you.

The 52-week SML period is made up of 26 weeks of ordinary maternity leave (OML) followed immediately by 26 weeks of additional maternity leave (AML).

Shared parental leave

In addition, an eligible mother can end her maternity leave early, and with her partner (this includes same-sex partners) or the child's father, opt for shared parental leave. Read more on shared parental leave and pay.

Compulsory maternity leave

An employee must take a minimum of two weeks' leave after the birth of her child - or four weeks if she works in a factory. You must not allow her to work during this time.

Multiple births

SML remains at 52 weeks regardless of the number of children resulting from a single pregnancy.

Stillbirth and miscarriage

If your employee gives birth to a stillborn baby, she is still entitled to maternity leave if the birth happens after 24 weeks of pregnancy.

If a miscarriage occurs before the end of the 24th week of pregnancy, the employee could take sick leave, or you could allow them to take compassionate leave, annual leave, or unpaid leave instead.

When a baby dies

If the baby is born alive at any point in the pregnancy but then later dies, the employee is still entitled to SML.

Parental Bereavement Leave and Pay

An employee may be eligible for Parental Bereavement Leave and Pay if they or their partner (this includes same-sex partners) either has a child who has died under 18 years old or had a stillbirth after 24 weeks.

Enhanced maternity leave

Employers can also provide enhanced maternity leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.

For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.

You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis, but use caution when exercising discretion to avoid claims of unfair treatment or discrimination.

Employees should tell you the following information no later than the end of the 15th week before the expected week of childbirth (EWC):

• The fact that she is pregnant.
• The expected date of the baby's birth.
• The intended start date of her maternity leave - this cannot be earlier than the beginning of the 11th week before the EWC. The expected date of birth is given on the MATB1 form that the employee receives from her registered doctor or midwife to confirm that she is pregnant. An employee can change the start date of her leave - see when maternity leave can begin.

The EWC is the week in which the expected date of the baby's birth falls - starting with the preceding Sunday and ending the following Saturday. If the baby is born on a Sunday, that date is the first day in the EWC. The qualifying week is referred to as the 15th week before the EWC.

You may request notification of statutory maternity leave (SML) in writing.

SML entitlement if the 15-week deadline is missed

A woman who realises she is pregnant later than 15 weeks before the EWC week is still entitled to SML. In this event, the employee is expected to tell you the information above as soon as possible after the 15-week deadline.

SML notification and claiming statutory maternity pay (SMP)

The start date for SMP is normally the same as the start date for SML. Therefore, many employees will find it convenient to notify you of the start date of their SMP at the same time as they notify you of the start date of their SML.

If the employee plans to take SML, she only needs to provide you with a MATB1 form so you can work out whether she qualifies for SMP. If she does not qualify, you must return the MATB1 form to her because she will need it to claim Maternity Allowance.

See maternity pay.

Failure to give the required notification

If an employee does not give you the required notification, you can postpone the date she has chosen to start her SML.

You do not have to accept shorter notice, but you may have to make an exception where it was not reasonably practicable for the employee to give you notice any earlier.

For example, the employee may not be able to notify you properly if her baby is born much earlier than expected, eg well before the qualifying week. In these circumstances, she still qualifies for 52 weeks' SML. See when maternity leave can begin.

Encouraging early notification

It benefits both you and the employee if she notifies you well in advance of the 15th week before the EWC as you:

• know she is entitled to paid time off for antenatal care
• know that particular health and safety rules apply
• can start making arrangements to cover the period while the employee is away

For further guidance, see pregnancy at work.

Confirming the end date of SML

After receiving her notification, you must in turn notify the employee of the date on which her SML will end. This will normally be 52 weeks from the intended start of her SML.

You must give the employee this information within 28 days of her notification unless the employee has since changed the date her leave will start. In that case, you must notify her of the end date within 28 days of the start of her leave.

If you fail to give the employee proper notification and she wants to change her return date, she may not be obliged to comply with the eight-week notice requirement - see changing a return date after maternity leave.

An employee can choose to begin her statutory maternity leave (SML) any time from 11 weeks before the expected week of childbirth (EWC) up until the birth itself.

For the rules on notification for SML, see notification and confirmation of maternity leave.

Pregnancy-related absence

An employee can choose when to start her maternity leave. The exception is if she is absent from work for a pregnancy-related reason and the absence is after the beginning of the fourth week before the EWC - but before the date she notified you that she intended to start her leave. In this case, you can start the maternity leave as soon as she is absent.

In these circumstances, her SML will begin the day after the first day of her pregnancy-related absence.

Pregnant employees are entitled to paid time off for antenatal care - see employees' right to paid time off for antenatal care.

Childbirth before maternity leave has begun

SML also begins on the day after the day of childbirth if the birth occurs before:

• the notified SML start date
• the employee has notified you of any SML start date

This applies even if the birth takes place before the start of the 11th week before the EWC. In these circumstances, the employee should give you notice - in writing if you request it - of:

• the date of the birth if it has already taken place
• the original expected date of birth

The employee can provide you with evidence of the actual and expected dates of birth on the maternity certificate (MATB1) provided by her doctor or midwife.

Changing the start date of SML

After giving you her notification, the employee can change her intended start date as long as she notifies you of the new start date. She must do this by whichever is the earlier of:

• 28 days before the date she originally intended to start her leave
• 28 days before the new date she wants to start her leave

However, if it is not reasonably practicable for her to give you this much notice, she does not have to. In these circumstances, she should give you as much notice as possible. You may request this notification in writing.

An employee's contract of employment continues throughout her 52 weeks of Statutory Maternity Leave (SML) unless either you or the employee expressly ends it or it expires.

During SML an employee has a statutory right to continue to benefit from all the terms and conditions of her employment that would have applied to her had she been at work.

The only exceptions are terms relating to wages or salary - though you must pay her statutory maternity pay if she's eligible. See maternity pay.

Contractual terms and conditions

Examples of contractual terms and conditions that continue during SML include:

• gym membership
• participation in share schemes
• reimbursement of professional subscriptions
• the use of a company car or mobile phone (unless provided for business use only)
• childcare vouchers
• contractual annual leave (any annual leave the employee receives above the minimum 5.6 weeks per annum)

Whether or not you should pay a bonus to an employee on SML depends on the type of bonus and the terms of the particular bonus scheme. You should ensure that you do not withhold any bonus simply because the employee is pregnant or is on maternity leave.

An employee on SML may receive contractual pay if she works on a keeping-in-touch day - see contact and work during maternity leave.

Continuous employment, length of service, and maternity leave

SML does not break the continuity of employment.

This means the entire SML period counts towards an employee's period of continuous employment when determining eligibility for other statutory employment rights, eg the right to a redundancy payment.

Both ordinary maternity leave and additional maternity leave count for assessing seniority and personal length-of-service payments, such as pay increments, under their contracts of employment.

During statutory maternity leave (SML), an employee continues to accrue annual leave.

She will also continue to benefit from any occupational pension scheme contributions for some of the SML period, ie during the paid maternity leave period.

Accrual of annual leave during maternity leave

An employee continues to accrue both their full statutory annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both ordinary maternity leave and additional maternity leave.

Employees will be able to carry over 5.6 weeks of leave into the next holiday year if they are unable to take the leave due to having taken maternity leave.

There is no legislative guidance on the right to carry over contractual leave in excess of the 5.6 weeks statutory leave.

An employee may not take annual leave during SML. You should instead allow the employee to take any untaken annual leave before and/or after her SML.

You cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.

An employee's SML begins automatically if she gives birth during a period of annual leave - see when maternity leave can begin.

For more information on annual leave entitlements, see know how much holiday to give your staff.

Pension contributions during maternity leave

During ordinary maternity leave (whether or not the employee is receiving statutory and/or enhanced maternity pay) and any period of paid additional maternity leave, you should calculate the employer's contribution to an occupational pension scheme as if the employee is working normally and receiving the normal remuneration for doing so.

During any period that your employee is on additional maternity leave (AML) but not receiving any maternity pay, eg during the last 13 weeks of AML, you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.

If the occupational pension scheme rules require employee contributions to continue during maternity leave, her contributions should be based on the amount of statutory and/or enhanced maternity pay she is receiving.

Employee contributions will therefore stop during any period of unpaid maternity leave - eg during the last 13 weeks of AML - but the occupational pension scheme rules may allow her to still make voluntary contributions.

Reasonable contact

During the statutory maternity leave (SML) period you can make reasonable contact with an employee - and they may make contact with you.

In addition, an employee can work as a way of keeping in touch with workplace developments.

Contact with employees on SML

You can make contact with the employee by any means, eg telephone, email, letter, or a meeting in the workplace.

The frequency and nature of any contact with them will depend on things like:

• the type of work and the employee's post
• any agreement that you might have reached with the employee before their leave began
• whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on her return

The amount of contact that is reasonable depends on whether the employee prefers to have frequent or minimal contact with you. It is a good idea to discuss how you will keep in touch with your employee before she begins her SML.

Remember that you must keep an employee informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was at work, eg organisation changes or redundancy situations.

Keeping in touch (KIT) days

Employees may, in agreement with you and on a voluntary basis, do up to ten days' work - known as keeping in touch (KIT) days - under their contract of employment during their SML period without it affecting their right to statutory maternity leave or pay.

An employee cannot use a KIT day during compulsory maternity leave - see the right to maternity leave.

During KIT days, employees can work for you. This could be her normal work or could be attending a conference, undertaking training, or attending a team meeting.

Any amount of work done on a KIT day counts as one KIT day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, she will have used up one of her KIT days.

If work on a KIT 'day' spans midnight, this counts as one KIT day - as long as this is the employee's normal working pattern.

Payment for KIT days

You and the employee should agree on how much you will pay her for a KIT day - this could be set out in her contract of employment or you may decide on a discretionary, case-by-case basis.

If the employee is receiving statutory maternity pay (SMP) when she works a KIT day, you must continue to pay her SMP for that week.

The employee can work under her contract of service for the employer paying her SMP for up to ten days (KIT days) during her maternity pay period without losing any SMP.

If the employee has used her ten KIT days and she does any further work, she will lose a week's SMP for the week in which she has done that work. If a week in her maternity pay period contains only KIT days, she would be paid SMP for that week. If a week in her maternity pay period contains the last KIT day and she does a further day's work in the same week, she will lose SMP for that week.

The SMP the employee receives for the week in which she works a KIT day can count towards any contractual pay you agree with her for working that KIT day. However, you could agree that she will receive her normal daily rate in addition to the SMP for that week.

Whatever the arrangement, you can still continue to recover SMP from HM Revenue & Customs (HMRC) as normal - see maternity pay.

You will need to comply with your statutory obligations, such as paying at least the national minimum wage, as normal and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.

KIT days: Protection against detriment or dismissal

An employee can only work a KIT day if she wants to and you agree to it - you cannot make an employee work a KIT day against her wishes, nor can the employee insist she works a KIT day if you do not agree to it.

It is unlawful for you to treat an employee unfairly or dismiss her because she:

• refused to work a KIT day
• worked - or considered working - a KIT day

If an employee believes that you have treated her unfairly or dismissed her under these circumstances, she may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in a tribunal claim for detrimental treatment, unfair dismissal and/or sex discrimination

Unless the employee has notified you otherwise, the date she returns to work will normally be the first working day 52 weeks after her statutory maternity leave (SML) began.

Returning to work before the planned return date

If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), she must give you notice at least eight weeks before her new return date. You can accept less or no notice at your discretion.

For example, if an employee was due to return to work after 52 weeks SML on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, she would need to give you eight weeks' notice of the new date, ie by 14 March.

If you did not provide appropriate notification of when her leave should end, the employee does not have to give you eight weeks' notice - see notification and confirmation of maternity leave.

If the employee attempts to return to work earlier than planned without giving you notice, you can postpone her return by up to eight weeks. However, you may not postpone her return to a date later than the end of her 52-week SML period.

If the employee still comes to work during the period of postponement, you do not have to pay her.

Returning to work after the planned return date

If an employee wishes to return to work after the planned return date, she should give you notice of her new date of return at least eight weeks before the originally planned return date.

For example, if an employee originally notified you that she planned to return to work at the end of her ordinary maternity leave (ie after 26 weeks) on 1 October but - while on leave - decides that she wishes to take her full entitlement of 52 weeks, she must notify you of this eight weeks before 1 October, ie by 6 August.

If you didn't provide appropriate notification of when her leave should end, the employee does not have to give you eight weeks' notice - see notification and confirmation of maternity leave.

Employees who do not wish to return to work after maternity leave

An employee who does not wish to return to work at all after her SML must give you notice of this. This will be the same notice she would give for resignation in any other circumstances as required by her contract of employment.

However, as long as she specifies the date on which she wishes to terminate the contract (eg the date she was due back at work after SML), her SML continues.

In addition, if she terminates her contract before the end of the statutory maternity pay (SMP) period, you must continue to pay her SMP for the full 39-week SMP pay period, provided she has not started work for an employer who did not employ her in the 15th week before her expected week of childbirth.

Employees who don't return are not required to pay back any SMP they have received. See maternity pay.

An employee is entitled to return to the same job that she had before going on statutory maternity leave (SML) if she only took ordinary maternity leave (OML), ie the initial 26-week period of SML. The rules are different where an employee takes all or some of her additional maternity leave (AML), ie the second 26-week period of SML.

Returning to work after OML

An employee who returns to work during or at the end of her OML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.

If you prevent an employee from returning to work, she may make a complaint of unfair dismissal and sex discrimination to an industrial and fair employment tribunal.

If she returns to work but you do not give her old job back, she may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in an industrial tribunal claim for sex discrimination or detrimental treatment

See maternity leave and protection against detriment or dismissal.

Returning to work after AML

An employee who returns to work during or at the end of her AML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.

However, if it is not reasonably practicable for you to let her return to her old job, you should offer her a job:

• that is both suitable and appropriate for her to do in the circumstances
• on terms and conditions that are no less favourable than those for her original job

If you offer the employee a job that fulfils the criteria above and she unreasonably refuses it, she will have effectively resigned.

If you offer the employee a job that does not fulfil the criteria, she may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in an industrial tribunal claim for sex discrimination or detrimental treatment

You should try to consult with employees during their SML about any proposed changes to their jobs in preparation for their return. See contact and work during maternity leave.

Taking parental leave after SML

Employees who qualify for parental leave may take some of this leave immediately following the end of their SML.

An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:

• it is for four weeks or less
• it is not preceded by any AML

If the parental leave period is for longer than four weeks and/or is preceded by a period of AML, the employee is treated as though they were returning to work after AML. See parental leave and time off for dependants.

Breastfeeding

Your health and safety obligations towards a breastfeeding employee are the same as they were when the employee was pregnant.

Pregnant workers and breastfeeding mothers are entitled to more frequent rest breaks. You should talk to them so you can agree on the timing and frequency.

You must provide a suitable area where a breastfeeding employee can rest. It should:

• include somewhere to lie down if necessary
• be hygienic and private so they can express milk if they choose to - toilets are not a suitable place for this
• include somewhere to store their milk, eg a fridge

See breastfeeding and the workplace.

Pregnancy during SML

If a woman becomes pregnant during her SML, she must notify you of this in the normal way - see notification and confirmation of maternity leave.

It is possible for her subsequent period of SML to begin as soon as the current one ends. In these circumstances, her rights on her eventual return are the same as they would have been had she just taken a single period of SML.

Flexible working requests

An employee returning to work may make a request to work flexibly, eg to change start or finish times, work from home, or do part-time hours. If possible, you should discuss this with the employee prior to SML, or during the keeping in touch process. Read more on flexible working: the law and best practice.

Employees are protected from suffering a detriment or dismissal for taking or seeking to take, statutory maternity leave (SML).

Detrimental treatment and Statutory Maternity Leave

You must not subject an employee to any detriment by acting or deliberately failing to act, because she:

• sought to take SML
• availed of SML

Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.

If an employee believes you have treated her detrimentally under these circumstances, she can take a claim of sex discrimination to an industrial tribunal.

Redundancy during Statutory Maternity Leave

If a redundancy situation arises at any stage during an employee's SML, you may not be able to continue employing her under her existing contract of employment.

In these circumstances, you must offer her - before that contract ends - any suitable alternative vacancy you have. This includes a vacancy with an associated employer or with a successor to the original employer.

The new job must start immediately after the end of the original one and must:

• be suitable and appropriate for her to do in the circumstances, and
• the capacity and place in which she is to be employed and the terms and conditions of her employment are not substantially less favourable to her than if she had continued to be employed under the original contract

If you fail to comply with these requirements and dismiss the employee, the dismissal will be unfair. She may also have a claim for sex discrimination.

However, if you end up making an employee on SML redundant because you had no suitable alternative work to offer her, the dismissal may be fair.

On dismissal, her SML period comes to an end, but her entitlement to statutory maternity pay (SMP) continues until the end of the 39-week SMP period - assuming it has not already ended.

You must provide written reasons for dismissal to any woman you dismiss or make redundant while she is pregnant or on SML.

See redundancy: the options.

Pay rises during SML

An employee on SML is entitled to benefit from any general improvements to the rate of pay, or other terms and terms, which are introduced for their grade or class of work - as if they had not been away.

Flexible working requests

Providing they meet the qualifying criteria, an employee returning to work from maternity leave may make a request to work flexibly, eg to adjust their start or finish times, work from home or do part-time hours. See flexible working: the law and best practice.

Dismissal on or after return to work from Statutory Maternity Leave

The dismissal of an employee will be automatically unfair if you dismiss her - or select her for redundancy in preference to other comparable employees - solely or mainly because she:

• has taken SML
• benefited from the terms and conditions of employment to which she was entitled during that SML period
• failed to return from her SML on time because you failed to give her any or adequate notification of the end date of her leave - see notification and confirmation of maternity leave

Dismissal, selection for redundancy, or other detrimental treatment in these circumstances may also amount to sex discrimination, for which industrial tribunal compensation is uncapped.

However, a dismissal may be potentially fair if, on the employee's return from additional maternity leave:

• you could not offer her the old job
• you - or an associated employer - offered her suitable alternative employment but she unreasonably refused

See returning to work from maternity leave.

Dismissal on grounds unrelated to Statutory Maternity Leave

It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - SML. If the reason for the dismissal is:

• largely or wholly unrelated to her SML
• not for any other reason that is unfair or unlawfully discriminatory

You must provide written reasons for dismissal to any woman you dismiss or make redundant while she is pregnant or on SML.

Dismissal of replacement employees

You can fairly dismiss an employee you took on to replace an employee on maternity leave. You should ensure that you follow a fair dismissal procedure in doing so, including the statutory dismissal procedure.

However, make sure you inform them that their position is only for maternity cover before they start.

Statutory maternity pay (SMP) is paid for up to 39 weeks and usually covers the first 39 weeks of an employee's maternity leave.

Eligibility for statutory maternity pay

To be eligible for SMP, a pregnant employee must meet certain qualifying conditions.

For more information, see Statutory Maternity Pay and Leave: eligibility and proof of pregnancy.

The meaning of the term 'employee' for SMP purposes is different from the meaning for statutory maternity leave (SML) and other employment rights. This means that some workers who are not employees, eg agency workers, may qualify for SMP, even though they do not qualify for SML.

Statutory maternity pay rates and recovery

For the first six weeks you must pay your employee SMP a weekly rate equal to 90% of their average weekly earnings (AWE).

For the next 33 weeks you must pay them the lower of the following:

• The standard weekly rate of £187.18
• 90% of their AWE

You can recover some or all of your SMP payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions (NICs) liability.

Read more on statutory pay and leave.

Enhanced maternity pay

If you wish, you can offer enhanced maternity pay arrangements to attract and retain employees, which are more generous than the statutory entitlements.

For example, you could:

• pay more than SMP over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, SMP for the remaining 23 weeks
• make a bonus payment on the employee's return to work

You could change the qualification criteria for these enhancements, eg the employee needs a year's continuous service.

You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis, but use caution when exercising discretion to avoid claims of unfair treatment or discrimination.

You can still recover from HMRC the SMP portion of any enhanced maternity pay.

All pregnant employees, ie those working under a contract of employment, are entitled to take up to 52 weeks of statutory maternity leave (SML) around the birth of their child. Employees automatically qualify for SML - it does not matter how long the employee has worked for you.

The 52-week SML period is made up of 26 weeks of ordinary maternity leave (OML) followed immediately by 26 weeks of additional maternity leave (AML).

Shared parental leave

In addition, an eligible mother can end her maternity leave early, and with her partner (this includes same-sex partners) or the child's father, opt for shared parental leave. Read more on shared parental leave and pay.

Compulsory maternity leave

An employee must take a minimum of two weeks' leave after the birth of her child - or four weeks if she works in a factory. You must not allow her to work during this time.

Multiple births

SML remains at 52 weeks regardless of the number of children resulting from a single pregnancy.

Stillbirth and miscarriage

If your employee gives birth to a stillborn baby, she is still entitled to maternity leave if the birth happens after 24 weeks of pregnancy.

If a miscarriage occurs before the end of the 24th week of pregnancy, the employee could take sick leave, or you could allow them to take compassionate leave, annual leave, or unpaid leave instead.

When a baby dies

If the baby is born alive at any point in the pregnancy but then later dies, the employee is still entitled to SML.

Parental Bereavement Leave and Pay

An employee may be eligible for Parental Bereavement Leave and Pay if they or their partner (this includes same-sex partners) either has a child who has died under 18 years old or had a stillbirth after 24 weeks.

Enhanced maternity leave

Employers can also provide enhanced maternity leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.

For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.

You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis, but use caution when exercising discretion to avoid claims of unfair treatment or discrimination.

Employees should tell you the following information no later than the end of the 15th week before the expected week of childbirth (EWC):

• The fact that she is pregnant.
• The expected date of the baby's birth.
• The intended start date of her maternity leave - this cannot be earlier than the beginning of the 11th week before the EWC. The expected date of birth is given on the MATB1 form that the employee receives from her registered doctor or midwife to confirm that she is pregnant. An employee can change the start date of her leave - see when maternity leave can begin.

The EWC is the week in which the expected date of the baby's birth falls - starting with the preceding Sunday and ending the following Saturday. If the baby is born on a Sunday, that date is the first day in the EWC. The qualifying week is referred to as the 15th week before the EWC.

You may request notification of statutory maternity leave (SML) in writing.

SML entitlement if the 15-week deadline is missed

A woman who realises she is pregnant later than 15 weeks before the EWC week is still entitled to SML. In this event, the employee is expected to tell you the information above as soon as possible after the 15-week deadline.

SML notification and claiming statutory maternity pay (SMP)

The start date for SMP is normally the same as the start date for SML. Therefore, many employees will find it convenient to notify you of the start date of their SMP at the same time as they notify you of the start date of their SML.

If the employee plans to take SML, she only needs to provide you with a MATB1 form so you can work out whether she qualifies for SMP. If she does not qualify, you must return the MATB1 form to her because she will need it to claim Maternity Allowance.

See maternity pay.

Failure to give the required notification

If an employee does not give you the required notification, you can postpone the date she has chosen to start her SML.

You do not have to accept shorter notice, but you may have to make an exception where it was not reasonably practicable for the employee to give you notice any earlier.

For example, the employee may not be able to notify you properly if her baby is born much earlier than expected, eg well before the qualifying week. In these circumstances, she still qualifies for 52 weeks' SML. See when maternity leave can begin.

Encouraging early notification

It benefits both you and the employee if she notifies you well in advance of the 15th week before the EWC as you:

• know she is entitled to paid time off for antenatal care
• know that particular health and safety rules apply
• can start making arrangements to cover the period while the employee is away

For further guidance, see pregnancy at work.

Confirming the end date of SML

After receiving her notification, you must in turn notify the employee of the date on which her SML will end. This will normally be 52 weeks from the intended start of her SML.

You must give the employee this information within 28 days of her notification unless the employee has since changed the date her leave will start. In that case, you must notify her of the end date within 28 days of the start of her leave.

If you fail to give the employee proper notification and she wants to change her return date, she may not be obliged to comply with the eight-week notice requirement - see changing a return date after maternity leave.

An employee can choose to begin her statutory maternity leave (SML) any time from 11 weeks before the expected week of childbirth (EWC) up until the birth itself.

For the rules on notification for SML, see notification and confirmation of maternity leave.

Pregnancy-related absence

An employee can choose when to start her maternity leave. The exception is if she is absent from work for a pregnancy-related reason and the absence is after the beginning of the fourth week before the EWC - but before the date she notified you that she intended to start her leave. In this case, you can start the maternity leave as soon as she is absent.

In these circumstances, her SML will begin the day after the first day of her pregnancy-related absence.

Pregnant employees are entitled to paid time off for antenatal care - see employees' right to paid time off for antenatal care.

Childbirth before maternity leave has begun

SML also begins on the day after the day of childbirth if the birth occurs before:

• the notified SML start date
• the employee has notified you of any SML start date

This applies even if the birth takes place before the start of the 11th week before the EWC. In these circumstances, the employee should give you notice - in writing if you request it - of:

• the date of the birth if it has already taken place
• the original expected date of birth

The employee can provide you with evidence of the actual and expected dates of birth on the maternity certificate (MATB1) provided by her doctor or midwife.

Changing the start date of SML

After giving you her notification, the employee can change her intended start date as long as she notifies you of the new start date. She must do this by whichever is the earlier of:

• 28 days before the date she originally intended to start her leave
• 28 days before the new date she wants to start her leave

However, if it is not reasonably practicable for her to give you this much notice, she does not have to. In these circumstances, she should give you as much notice as possible. You may request this notification in writing.

An employee's contract of employment continues throughout her 52 weeks of Statutory Maternity Leave (SML) unless either you or the employee expressly ends it or it expires.

During SML an employee has a statutory right to continue to benefit from all the terms and conditions of her employment that would have applied to her had she been at work.

The only exceptions are terms relating to wages or salary - though you must pay her statutory maternity pay if she's eligible. See maternity pay.

Contractual terms and conditions

Examples of contractual terms and conditions that continue during SML include:

• gym membership
• participation in share schemes
• reimbursement of professional subscriptions
• the use of a company car or mobile phone (unless provided for business use only)
• childcare vouchers
• contractual annual leave (any annual leave the employee receives above the minimum 5.6 weeks per annum)

Whether or not you should pay a bonus to an employee on SML depends on the type of bonus and the terms of the particular bonus scheme. You should ensure that you do not withhold any bonus simply because the employee is pregnant or is on maternity leave.

An employee on SML may receive contractual pay if she works on a keeping-in-touch day - see contact and work during maternity leave.

Continuous employment, length of service, and maternity leave

SML does not break the continuity of employment.

This means the entire SML period counts towards an employee's period of continuous employment when determining eligibility for other statutory employment rights, eg the right to a redundancy payment.

Both ordinary maternity leave and additional maternity leave count for assessing seniority and personal length-of-service payments, such as pay increments, under their contracts of employment.

During statutory maternity leave (SML), an employee continues to accrue annual leave.

She will also continue to benefit from any occupational pension scheme contributions for some of the SML period, ie during the paid maternity leave period.

Accrual of annual leave during maternity leave

An employee continues to accrue both their full statutory annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both ordinary maternity leave and additional maternity leave.

Employees will be able to carry over 5.6 weeks of leave into the next holiday year if they are unable to take the leave due to having taken maternity leave.

There is no legislative guidance on the right to carry over contractual leave in excess of the 5.6 weeks statutory leave.

An employee may not take annual leave during SML. You should instead allow the employee to take any untaken annual leave before and/or after her SML.

You cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.

An employee's SML begins automatically if she gives birth during a period of annual leave - see when maternity leave can begin.

For more information on annual leave entitlements, see know how much holiday to give your staff.

Pension contributions during maternity leave

During ordinary maternity leave (whether or not the employee is receiving statutory and/or enhanced maternity pay) and any period of paid additional maternity leave, you should calculate the employer's contribution to an occupational pension scheme as if the employee is working normally and receiving the normal remuneration for doing so.

During any period that your employee is on additional maternity leave (AML) but not receiving any maternity pay, eg during the last 13 weeks of AML, you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.

If the occupational pension scheme rules require employee contributions to continue during maternity leave, her contributions should be based on the amount of statutory and/or enhanced maternity pay she is receiving.

Employee contributions will therefore stop during any period of unpaid maternity leave - eg during the last 13 weeks of AML - but the occupational pension scheme rules may allow her to still make voluntary contributions.

Reasonable contact

During the statutory maternity leave (SML) period you can make reasonable contact with an employee - and they may make contact with you.

In addition, an employee can work as a way of keeping in touch with workplace developments.

Contact with employees on SML

You can make contact with the employee by any means, eg telephone, email, letter, or a meeting in the workplace.

The frequency and nature of any contact with them will depend on things like:

• the type of work and the employee's post
• any agreement that you might have reached with the employee before their leave began
• whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on her return

The amount of contact that is reasonable depends on whether the employee prefers to have frequent or minimal contact with you. It is a good idea to discuss how you will keep in touch with your employee before she begins her SML.

Remember that you must keep an employee informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was at work, eg organisation changes or redundancy situations.

Keeping in touch (KIT) days

Employees may, in agreement with you and on a voluntary basis, do up to ten days' work - known as keeping in touch (KIT) days - under their contract of employment during their SML period without it affecting their right to statutory maternity leave or pay.

An employee cannot use a KIT day during compulsory maternity leave - see the right to maternity leave.

During KIT days, employees can work for you. This could be her normal work or could be attending a conference, undertaking training, or attending a team meeting.

Any amount of work done on a KIT day counts as one KIT day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, she will have used up one of her KIT days.

If work on a KIT 'day' spans midnight, this counts as one KIT day - as long as this is the employee's normal working pattern.

Payment for KIT days

You and the employee should agree on how much you will pay her for a KIT day - this could be set out in her contract of employment or you may decide on a discretionary, case-by-case basis.

If the employee is receiving statutory maternity pay (SMP) when she works a KIT day, you must continue to pay her SMP for that week.

The employee can work under her contract of service for the employer paying her SMP for up to ten days (KIT days) during her maternity pay period without losing any SMP.

If the employee has used her ten KIT days and she does any further work, she will lose a week's SMP for the week in which she has done that work. If a week in her maternity pay period contains only KIT days, she would be paid SMP for that week. If a week in her maternity pay period contains the last KIT day and she does a further day's work in the same week, she will lose SMP for that week.

The SMP the employee receives for the week in which she works a KIT day can count towards any contractual pay you agree with her for working that KIT day. However, you could agree that she will receive her normal daily rate in addition to the SMP for that week.

Whatever the arrangement, you can still continue to recover SMP from HM Revenue & Customs (HMRC) as normal - see maternity pay.

You will need to comply with your statutory obligations, such as paying at least the national minimum wage, as normal and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.

KIT days: Protection against detriment or dismissal

An employee can only work a KIT day if she wants to and you agree to it - you cannot make an employee work a KIT day against her wishes, nor can the employee insist she works a KIT day if you do not agree to it.

It is unlawful for you to treat an employee unfairly or dismiss her because she:

• refused to work a KIT day
• worked - or considered working - a KIT day

If an employee believes that you have treated her unfairly or dismissed her under these circumstances, she may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in a tribunal claim for detrimental treatment, unfair dismissal and/or sex discrimination

Unless the employee has notified you otherwise, the date she returns to work will normally be the first working day 52 weeks after her statutory maternity leave (SML) began.

Returning to work before the planned return date

If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), she must give you notice at least eight weeks before her new return date. You can accept less or no notice at your discretion.

For example, if an employee was due to return to work after 52 weeks SML on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, she would need to give you eight weeks' notice of the new date, ie by 14 March.

If you did not provide appropriate notification of when her leave should end, the employee does not have to give you eight weeks' notice - see notification and confirmation of maternity leave.

If the employee attempts to return to work earlier than planned without giving you notice, you can postpone her return by up to eight weeks. However, you may not postpone her return to a date later than the end of her 52-week SML period.

If the employee still comes to work during the period of postponement, you do not have to pay her.

Returning to work after the planned return date

If an employee wishes to return to work after the planned return date, she should give you notice of her new date of return at least eight weeks before the originally planned return date.

For example, if an employee originally notified you that she planned to return to work at the end of her ordinary maternity leave (ie after 26 weeks) on 1 October but - while on leave - decides that she wishes to take her full entitlement of 52 weeks, she must notify you of this eight weeks before 1 October, ie by 6 August.

If you didn't provide appropriate notification of when her leave should end, the employee does not have to give you eight weeks' notice - see notification and confirmation of maternity leave.

Employees who do not wish to return to work after maternity leave

An employee who does not wish to return to work at all after her SML must give you notice of this. This will be the same notice she would give for resignation in any other circumstances as required by her contract of employment.

However, as long as she specifies the date on which she wishes to terminate the contract (eg the date she was due back at work after SML), her SML continues.

In addition, if she terminates her contract before the end of the statutory maternity pay (SMP) period, you must continue to pay her SMP for the full 39-week SMP pay period, provided she has not started work for an employer who did not employ her in the 15th week before her expected week of childbirth.

Employees who don't return are not required to pay back any SMP they have received. See maternity pay.

An employee is entitled to return to the same job that she had before going on statutory maternity leave (SML) if she only took ordinary maternity leave (OML), ie the initial 26-week period of SML. The rules are different where an employee takes all or some of her additional maternity leave (AML), ie the second 26-week period of SML.

Returning to work after OML

An employee who returns to work during or at the end of her OML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.

If you prevent an employee from returning to work, she may make a complaint of unfair dismissal and sex discrimination to an industrial and fair employment tribunal.

If she returns to work but you do not give her old job back, she may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in an industrial tribunal claim for sex discrimination or detrimental treatment

See maternity leave and protection against detriment or dismissal.

Returning to work after AML

An employee who returns to work during or at the end of her AML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.

However, if it is not reasonably practicable for you to let her return to her old job, you should offer her a job:

• that is both suitable and appropriate for her to do in the circumstances
• on terms and conditions that are no less favourable than those for her original job

If you offer the employee a job that fulfils the criteria above and she unreasonably refuses it, she will have effectively resigned.

If you offer the employee a job that does not fulfil the criteria, she may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in an industrial tribunal claim for sex discrimination or detrimental treatment

You should try to consult with employees during their SML about any proposed changes to their jobs in preparation for their return. See contact and work during maternity leave.

Taking parental leave after SML

Employees who qualify for parental leave may take some of this leave immediately following the end of their SML.

An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:

• it is for four weeks or less
• it is not preceded by any AML

If the parental leave period is for longer than four weeks and/or is preceded by a period of AML, the employee is treated as though they were returning to work after AML. See parental leave and time off for dependants.

Breastfeeding

Your health and safety obligations towards a breastfeeding employee are the same as they were when the employee was pregnant.

Pregnant workers and breastfeeding mothers are entitled to more frequent rest breaks. You should talk to them so you can agree on the timing and frequency.

You must provide a suitable area where a breastfeeding employee can rest. It should:

• include somewhere to lie down if necessary
• be hygienic and private so they can express milk if they choose to - toilets are not a suitable place for this
• include somewhere to store their milk, eg a fridge

See breastfeeding and the workplace.

Pregnancy during SML

If a woman becomes pregnant during her SML, she must notify you of this in the normal way - see notification and confirmation of maternity leave.

It is possible for her subsequent period of SML to begin as soon as the current one ends. In these circumstances, her rights on her eventual return are the same as they would have been had she just taken a single period of SML.

Flexible working requests

An employee returning to work may make a request to work flexibly, eg to change start or finish times, work from home, or do part-time hours. If possible, you should discuss this with the employee prior to SML, or during the keeping in touch process. Read more on flexible working: the law and best practice.

Employees are protected from suffering a detriment or dismissal for taking or seeking to take, statutory maternity leave (SML).

Detrimental treatment and Statutory Maternity Leave

You must not subject an employee to any detriment by acting or deliberately failing to act, because she:

• sought to take SML
• availed of SML

Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.

If an employee believes you have treated her detrimentally under these circumstances, she can take a claim of sex discrimination to an industrial tribunal.

Redundancy during Statutory Maternity Leave

If a redundancy situation arises at any stage during an employee's SML, you may not be able to continue employing her under her existing contract of employment.

In these circumstances, you must offer her - before that contract ends - any suitable alternative vacancy you have. This includes a vacancy with an associated employer or with a successor to the original employer.

The new job must start immediately after the end of the original one and must:

• be suitable and appropriate for her to do in the circumstances, and
• the capacity and place in which she is to be employed and the terms and conditions of her employment are not substantially less favourable to her than if she had continued to be employed under the original contract

If you fail to comply with these requirements and dismiss the employee, the dismissal will be unfair. She may also have a claim for sex discrimination.

However, if you end up making an employee on SML redundant because you had no suitable alternative work to offer her, the dismissal may be fair.

On dismissal, her SML period comes to an end, but her entitlement to statutory maternity pay (SMP) continues until the end of the 39-week SMP period - assuming it has not already ended.

You must provide written reasons for dismissal to any woman you dismiss or make redundant while she is pregnant or on SML.

See redundancy: the options.

Pay rises during SML

An employee on SML is entitled to benefit from any general improvements to the rate of pay, or other terms and terms, which are introduced for their grade or class of work - as if they had not been away.

Flexible working requests

Providing they meet the qualifying criteria, an employee returning to work from maternity leave may make a request to work flexibly, eg to adjust their start or finish times, work from home or do part-time hours. See flexible working: the law and best practice.

Dismissal on or after return to work from Statutory Maternity Leave

The dismissal of an employee will be automatically unfair if you dismiss her - or select her for redundancy in preference to other comparable employees - solely or mainly because she:

• has taken SML
• benefited from the terms and conditions of employment to which she was entitled during that SML period
• failed to return from her SML on time because you failed to give her any or adequate notification of the end date of her leave - see notification and confirmation of maternity leave

Dismissal, selection for redundancy, or other detrimental treatment in these circumstances may also amount to sex discrimination, for which industrial tribunal compensation is uncapped.

However, a dismissal may be potentially fair if, on the employee's return from additional maternity leave:

• you could not offer her the old job
• you - or an associated employer - offered her suitable alternative employment but she unreasonably refused

See returning to work from maternity leave.

Dismissal on grounds unrelated to Statutory Maternity Leave

It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - SML. If the reason for the dismissal is:

• largely or wholly unrelated to her SML
• not for any other reason that is unfair or unlawfully discriminatory

You must provide written reasons for dismissal to any woman you dismiss or make redundant while she is pregnant or on SML.

Dismissal of replacement employees

You can fairly dismiss an employee you took on to replace an employee on maternity leave. You should ensure that you follow a fair dismissal procedure in doing so, including the statutory dismissal procedure.

However, make sure you inform them that their position is only for maternity cover before they start.

Statutory maternity pay (SMP) is paid for up to 39 weeks and usually covers the first 39 weeks of an employee's maternity leave.

Eligibility for statutory maternity pay

To be eligible for SMP, a pregnant employee must meet certain qualifying conditions.

For more information, see Statutory Maternity Pay and Leave: eligibility and proof of pregnancy.

The meaning of the term 'employee' for SMP purposes is different from the meaning for statutory maternity leave (SML) and other employment rights. This means that some workers who are not employees, eg agency workers, may qualify for SMP, even though they do not qualify for SML.

Statutory maternity pay rates and recovery

For the first six weeks you must pay your employee SMP a weekly rate equal to 90% of their average weekly earnings (AWE).

For the next 33 weeks you must pay them the lower of the following:

• The standard weekly rate of £187.18
• 90% of their AWE

You can recover some or all of your SMP payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions (NICs) liability.

Read more on statutory pay and leave.

Enhanced maternity pay

If you wish, you can offer enhanced maternity pay arrangements to attract and retain employees, which are more generous than the statutory entitlements.

For example, you could:

• pay more than SMP over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, SMP for the remaining 23 weeks
• make a bonus payment on the employee's return to work

You could change the qualification criteria for these enhancements, eg the employee needs a year's continuous service.

You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis, but use caution when exercising discretion to avoid claims of unfair treatment or discrimination.

You can still recover from HMRC the SMP portion of any enhanced maternity pay.

All pregnant employees, ie those working under a contract of employment, are entitled to take up to 52 weeks of statutory maternity leave (SML) around the birth of their child. Employees automatically qualify for SML - it does not matter how long the employee has worked for you.

The 52-week SML period is made up of 26 weeks of ordinary maternity leave (OML) followed immediately by 26 weeks of additional maternity leave (AML).

Shared parental leave

In addition, an eligible mother can end her maternity leave early, and with her partner (this includes same-sex partners) or the child's father, opt for shared parental leave. Read more on shared parental leave and pay.

Compulsory maternity leave

An employee must take a minimum of two weeks' leave after the birth of her child - or four weeks if she works in a factory. You must not allow her to work during this time.

Multiple births

SML remains at 52 weeks regardless of the number of children resulting from a single pregnancy.

Stillbirth and miscarriage

If your employee gives birth to a stillborn baby, she is still entitled to maternity leave if the birth happens after 24 weeks of pregnancy.

If a miscarriage occurs before the end of the 24th week of pregnancy, the employee could take sick leave, or you could allow them to take compassionate leave, annual leave, or unpaid leave instead.

When a baby dies

If the baby is born alive at any point in the pregnancy but then later dies, the employee is still entitled to SML.

Parental Bereavement Leave and Pay

An employee may be eligible for Parental Bereavement Leave and Pay if they or their partner (this includes same-sex partners) either has a child who has died under 18 years old or had a stillbirth after 24 weeks.

Enhanced maternity leave

Employers can also provide enhanced maternity leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.

For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.

You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis, but use caution when exercising discretion to avoid claims of unfair treatment or discrimination.

Employees should tell you the following information no later than the end of the 15th week before the expected week of childbirth (EWC):

• The fact that she is pregnant.
• The expected date of the baby's birth.
• The intended start date of her maternity leave - this cannot be earlier than the beginning of the 11th week before the EWC. The expected date of birth is given on the MATB1 form that the employee receives from her registered doctor or midwife to confirm that she is pregnant. An employee can change the start date of her leave - see when maternity leave can begin.

The EWC is the week in which the expected date of the baby's birth falls - starting with the preceding Sunday and ending the following Saturday. If the baby is born on a Sunday, that date is the first day in the EWC. The qualifying week is referred to as the 15th week before the EWC.

You may request notification of statutory maternity leave (SML) in writing.

SML entitlement if the 15-week deadline is missed

A woman who realises she is pregnant later than 15 weeks before the EWC week is still entitled to SML. In this event, the employee is expected to tell you the information above as soon as possible after the 15-week deadline.

SML notification and claiming statutory maternity pay (SMP)

The start date for SMP is normally the same as the start date for SML. Therefore, many employees will find it convenient to notify you of the start date of their SMP at the same time as they notify you of the start date of their SML.

If the employee plans to take SML, she only needs to provide you with a MATB1 form so you can work out whether she qualifies for SMP. If she does not qualify, you must return the MATB1 form to her because she will need it to claim Maternity Allowance.

See maternity pay.

Failure to give the required notification

If an employee does not give you the required notification, you can postpone the date she has chosen to start her SML.

You do not have to accept shorter notice, but you may have to make an exception where it was not reasonably practicable for the employee to give you notice any earlier.

For example, the employee may not be able to notify you properly if her baby is born much earlier than expected, eg well before the qualifying week. In these circumstances, she still qualifies for 52 weeks' SML. See when maternity leave can begin.

Encouraging early notification

It benefits both you and the employee if she notifies you well in advance of the 15th week before the EWC as you:

• know she is entitled to paid time off for antenatal care
• know that particular health and safety rules apply
• can start making arrangements to cover the period while the employee is away

For further guidance, see pregnancy at work.

Confirming the end date of SML

After receiving her notification, you must in turn notify the employee of the date on which her SML will end. This will normally be 52 weeks from the intended start of her SML.

You must give the employee this information within 28 days of her notification unless the employee has since changed the date her leave will start. In that case, you must notify her of the end date within 28 days of the start of her leave.

If you fail to give the employee proper notification and she wants to change her return date, she may not be obliged to comply with the eight-week notice requirement - see changing a return date after maternity leave.

An employee can choose to begin her statutory maternity leave (SML) any time from 11 weeks before the expected week of childbirth (EWC) up until the birth itself.

For the rules on notification for SML, see notification and confirmation of maternity leave.

Pregnancy-related absence

An employee can choose when to start her maternity leave. The exception is if she is absent from work for a pregnancy-related reason and the absence is after the beginning of the fourth week before the EWC - but before the date she notified you that she intended to start her leave. In this case, you can start the maternity leave as soon as she is absent.

In these circumstances, her SML will begin the day after the first day of her pregnancy-related absence.

Pregnant employees are entitled to paid time off for antenatal care - see employees' right to paid time off for antenatal care.

Childbirth before maternity leave has begun

SML also begins on the day after the day of childbirth if the birth occurs before:

• the notified SML start date
• the employee has notified you of any SML start date

This applies even if the birth takes place before the start of the 11th week before the EWC. In these circumstances, the employee should give you notice - in writing if you request it - of:

• the date of the birth if it has already taken place
• the original expected date of birth

The employee can provide you with evidence of the actual and expected dates of birth on the maternity certificate (MATB1) provided by her doctor or midwife.

Changing the start date of SML

After giving you her notification, the employee can change her intended start date as long as she notifies you of the new start date. She must do this by whichever is the earlier of:

• 28 days before the date she originally intended to start her leave
• 28 days before the new date she wants to start her leave

However, if it is not reasonably practicable for her to give you this much notice, she does not have to. In these circumstances, she should give you as much notice as possible. You may request this notification in writing.

An employee's contract of employment continues throughout her 52 weeks of Statutory Maternity Leave (SML) unless either you or the employee expressly ends it or it expires.

During SML an employee has a statutory right to continue to benefit from all the terms and conditions of her employment that would have applied to her had she been at work.

The only exceptions are terms relating to wages or salary - though you must pay her statutory maternity pay if she's eligible. See maternity pay.

Contractual terms and conditions

Examples of contractual terms and conditions that continue during SML include:

• gym membership
• participation in share schemes
• reimbursement of professional subscriptions
• the use of a company car or mobile phone (unless provided for business use only)
• childcare vouchers
• contractual annual leave (any annual leave the employee receives above the minimum 5.6 weeks per annum)

Whether or not you should pay a bonus to an employee on SML depends on the type of bonus and the terms of the particular bonus scheme. You should ensure that you do not withhold any bonus simply because the employee is pregnant or is on maternity leave.

An employee on SML may receive contractual pay if she works on a keeping-in-touch day - see contact and work during maternity leave.

Continuous employment, length of service, and maternity leave

SML does not break the continuity of employment.

This means the entire SML period counts towards an employee's period of continuous employment when determining eligibility for other statutory employment rights, eg the right to a redundancy payment.

Both ordinary maternity leave and additional maternity leave count for assessing seniority and personal length-of-service payments, such as pay increments, under their contracts of employment.

During statutory maternity leave (SML), an employee continues to accrue annual leave.

She will also continue to benefit from any occupational pension scheme contributions for some of the SML period, ie during the paid maternity leave period.

Accrual of annual leave during maternity leave

An employee continues to accrue both their full statutory annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both ordinary maternity leave and additional maternity leave.

Employees will be able to carry over 5.6 weeks of leave into the next holiday year if they are unable to take the leave due to having taken maternity leave.

There is no legislative guidance on the right to carry over contractual leave in excess of the 5.6 weeks statutory leave.

An employee may not take annual leave during SML. You should instead allow the employee to take any untaken annual leave before and/or after her SML.

You cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.

An employee's SML begins automatically if she gives birth during a period of annual leave - see when maternity leave can begin.

For more information on annual leave entitlements, see know how much holiday to give your staff.

Pension contributions during maternity leave

During ordinary maternity leave (whether or not the employee is receiving statutory and/or enhanced maternity pay) and any period of paid additional maternity leave, you should calculate the employer's contribution to an occupational pension scheme as if the employee is working normally and receiving the normal remuneration for doing so.

During any period that your employee is on additional maternity leave (AML) but not receiving any maternity pay, eg during the last 13 weeks of AML, you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.

If the occupational pension scheme rules require employee contributions to continue during maternity leave, her contributions should be based on the amount of statutory and/or enhanced maternity pay she is receiving.

Employee contributions will therefore stop during any period of unpaid maternity leave - eg during the last 13 weeks of AML - but the occupational pension scheme rules may allow her to still make voluntary contributions.

Reasonable contact

During the statutory maternity leave (SML) period you can make reasonable contact with an employee - and they may make contact with you.

In addition, an employee can work as a way of keeping in touch with workplace developments.

Contact with employees on SML

You can make contact with the employee by any means, eg telephone, email, letter, or a meeting in the workplace.

The frequency and nature of any contact with them will depend on things like:

• the type of work and the employee's post
• any agreement that you might have reached with the employee before their leave began
• whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on her return

The amount of contact that is reasonable depends on whether the employee prefers to have frequent or minimal contact with you. It is a good idea to discuss how you will keep in touch with your employee before she begins her SML.

Remember that you must keep an employee informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was at work, eg organisation changes or redundancy situations.

Keeping in touch (KIT) days

Employees may, in agreement with you and on a voluntary basis, do up to ten days' work - known as keeping in touch (KIT) days - under their contract of employment during their SML period without it affecting their right to statutory maternity leave or pay.

An employee cannot use a KIT day during compulsory maternity leave - see the right to maternity leave.

During KIT days, employees can work for you. This could be her normal work or could be attending a conference, undertaking training, or attending a team meeting.

Any amount of work done on a KIT day counts as one KIT day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, she will have used up one of her KIT days.

If work on a KIT 'day' spans midnight, this counts as one KIT day - as long as this is the employee's normal working pattern.

Payment for KIT days

You and the employee should agree on how much you will pay her for a KIT day - this could be set out in her contract of employment or you may decide on a discretionary, case-by-case basis.

If the employee is receiving statutory maternity pay (SMP) when she works a KIT day, you must continue to pay her SMP for that week.

The employee can work under her contract of service for the employer paying her SMP for up to ten days (KIT days) during her maternity pay period without losing any SMP.

If the employee has used her ten KIT days and she does any further work, she will lose a week's SMP for the week in which she has done that work. If a week in her maternity pay period contains only KIT days, she would be paid SMP for that week. If a week in her maternity pay period contains the last KIT day and she does a further day's work in the same week, she will lose SMP for that week.

The SMP the employee receives for the week in which she works a KIT day can count towards any contractual pay you agree with her for working that KIT day. However, you could agree that she will receive her normal daily rate in addition to the SMP for that week.

Whatever the arrangement, you can still continue to recover SMP from HM Revenue & Customs (HMRC) as normal - see maternity pay.

You will need to comply with your statutory obligations, such as paying at least the national minimum wage, as normal and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.

KIT days: Protection against detriment or dismissal

An employee can only work a KIT day if she wants to and you agree to it - you cannot make an employee work a KIT day against her wishes, nor can the employee insist she works a KIT day if you do not agree to it.

It is unlawful for you to treat an employee unfairly or dismiss her because she:

• refused to work a KIT day
• worked - or considered working - a KIT day

If an employee believes that you have treated her unfairly or dismissed her under these circumstances, she may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in a tribunal claim for detrimental treatment, unfair dismissal and/or sex discrimination

Unless the employee has notified you otherwise, the date she returns to work will normally be the first working day 52 weeks after her statutory maternity leave (SML) began.

Returning to work before the planned return date

If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), she must give you notice at least eight weeks before her new return date. You can accept less or no notice at your discretion.

For example, if an employee was due to return to work after 52 weeks SML on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, she would need to give you eight weeks' notice of the new date, ie by 14 March.

If you did not provide appropriate notification of when her leave should end, the employee does not have to give you eight weeks' notice - see notification and confirmation of maternity leave.

If the employee attempts to return to work earlier than planned without giving you notice, you can postpone her return by up to eight weeks. However, you may not postpone her return to a date later than the end of her 52-week SML period.

If the employee still comes to work during the period of postponement, you do not have to pay her.

Returning to work after the planned return date

If an employee wishes to return to work after the planned return date, she should give you notice of her new date of return at least eight weeks before the originally planned return date.

For example, if an employee originally notified you that she planned to return to work at the end of her ordinary maternity leave (ie after 26 weeks) on 1 October but - while on leave - decides that she wishes to take her full entitlement of 52 weeks, she must notify you of this eight weeks before 1 October, ie by 6 August.

If you didn't provide appropriate notification of when her leave should end, the employee does not have to give you eight weeks' notice - see notification and confirmation of maternity leave.

Employees who do not wish to return to work after maternity leave

An employee who does not wish to return to work at all after her SML must give you notice of this. This will be the same notice she would give for resignation in any other circumstances as required by her contract of employment.

However, as long as she specifies the date on which she wishes to terminate the contract (eg the date she was due back at work after SML), her SML continues.

In addition, if she terminates her contract before the end of the statutory maternity pay (SMP) period, you must continue to pay her SMP for the full 39-week SMP pay period, provided she has not started work for an employer who did not employ her in the 15th week before her expected week of childbirth.

Employees who don't return are not required to pay back any SMP they have received. See maternity pay.

An employee is entitled to return to the same job that she had before going on statutory maternity leave (SML) if she only took ordinary maternity leave (OML), ie the initial 26-week period of SML. The rules are different where an employee takes all or some of her additional maternity leave (AML), ie the second 26-week period of SML.

Returning to work after OML

An employee who returns to work during or at the end of her OML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.

If you prevent an employee from returning to work, she may make a complaint of unfair dismissal and sex discrimination to an industrial and fair employment tribunal.

If she returns to work but you do not give her old job back, she may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in an industrial tribunal claim for sex discrimination or detrimental treatment

See maternity leave and protection against detriment or dismissal.

Returning to work after AML

An employee who returns to work during or at the end of her AML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.

However, if it is not reasonably practicable for you to let her return to her old job, you should offer her a job:

• that is both suitable and appropriate for her to do in the circumstances
• on terms and conditions that are no less favourable than those for her original job

If you offer the employee a job that fulfils the criteria above and she unreasonably refuses it, she will have effectively resigned.

If you offer the employee a job that does not fulfil the criteria, she may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in an industrial tribunal claim for sex discrimination or detrimental treatment

You should try to consult with employees during their SML about any proposed changes to their jobs in preparation for their return. See contact and work during maternity leave.

Taking parental leave after SML

Employees who qualify for parental leave may take some of this leave immediately following the end of their SML.

An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:

• it is for four weeks or less
• it is not preceded by any AML

If the parental leave period is for longer than four weeks and/or is preceded by a period of AML, the employee is treated as though they were returning to work after AML. See parental leave and time off for dependants.

Breastfeeding

Your health and safety obligations towards a breastfeeding employee are the same as they were when the employee was pregnant.

Pregnant workers and breastfeeding mothers are entitled to more frequent rest breaks. You should talk to them so you can agree on the timing and frequency.

You must provide a suitable area where a breastfeeding employee can rest. It should:

• include somewhere to lie down if necessary
• be hygienic and private so they can express milk if they choose to - toilets are not a suitable place for this
• include somewhere to store their milk, eg a fridge

See breastfeeding and the workplace.

Pregnancy during SML

If a woman becomes pregnant during her SML, she must notify you of this in the normal way - see notification and confirmation of maternity leave.

It is possible for her subsequent period of SML to begin as soon as the current one ends. In these circumstances, her rights on her eventual return are the same as they would have been had she just taken a single period of SML.

Flexible working requests

An employee returning to work may make a request to work flexibly, eg to change start or finish times, work from home, or do part-time hours. If possible, you should discuss this with the employee prior to SML, or during the keeping in touch process. Read more on flexible working: the law and best practice.

Employees are protected from suffering a detriment or dismissal for taking or seeking to take, statutory maternity leave (SML).

Detrimental treatment and Statutory Maternity Leave

You must not subject an employee to any detriment by acting or deliberately failing to act, because she:

• sought to take SML
• availed of SML

Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.

If an employee believes you have treated her detrimentally under these circumstances, she can take a claim of sex discrimination to an industrial tribunal.

Redundancy during Statutory Maternity Leave

If a redundancy situation arises at any stage during an employee's SML, you may not be able to continue employing her under her existing contract of employment.

In these circumstances, you must offer her - before that contract ends - any suitable alternative vacancy you have. This includes a vacancy with an associated employer or with a successor to the original employer.

The new job must start immediately after the end of the original one and must:

• be suitable and appropriate for her to do in the circumstances, and
• the capacity and place in which she is to be employed and the terms and conditions of her employment are not substantially less favourable to her than if she had continued to be employed under the original contract

If you fail to comply with these requirements and dismiss the employee, the dismissal will be unfair. She may also have a claim for sex discrimination.

However, if you end up making an employee on SML redundant because you had no suitable alternative work to offer her, the dismissal may be fair.

On dismissal, her SML period comes to an end, but her entitlement to statutory maternity pay (SMP) continues until the end of the 39-week SMP period - assuming it has not already ended.

You must provide written reasons for dismissal to any woman you dismiss or make redundant while she is pregnant or on SML.

See redundancy: the options.

Pay rises during SML

An employee on SML is entitled to benefit from any general improvements to the rate of pay, or other terms and terms, which are introduced for their grade or class of work - as if they had not been away.

Flexible working requests

Providing they meet the qualifying criteria, an employee returning to work from maternity leave may make a request to work flexibly, eg to adjust their start or finish times, work from home or do part-time hours. See flexible working: the law and best practice.

Dismissal on or after return to work from Statutory Maternity Leave

The dismissal of an employee will be automatically unfair if you dismiss her - or select her for redundancy in preference to other comparable employees - solely or mainly because she:

• has taken SML
• benefited from the terms and conditions of employment to which she was entitled during that SML period
• failed to return from her SML on time because you failed to give her any or adequate notification of the end date of her leave - see notification and confirmation of maternity leave

Dismissal, selection for redundancy, or other detrimental treatment in these circumstances may also amount to sex discrimination, for which industrial tribunal compensation is uncapped.

However, a dismissal may be potentially fair if, on the employee's return from additional maternity leave:

• you could not offer her the old job
• you - or an associated employer - offered her suitable alternative employment but she unreasonably refused

See returning to work from maternity leave.

Dismissal on grounds unrelated to Statutory Maternity Leave

It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - SML. If the reason for the dismissal is:

• largely or wholly unrelated to her SML
• not for any other reason that is unfair or unlawfully discriminatory

You must provide written reasons for dismissal to any woman you dismiss or make redundant while she is pregnant or on SML.

Dismissal of replacement employees

You can fairly dismiss an employee you took on to replace an employee on maternity leave. You should ensure that you follow a fair dismissal procedure in doing so, including the statutory dismissal procedure.

However, make sure you inform them that their position is only for maternity cover before they start.

Statutory maternity pay (SMP) is paid for up to 39 weeks and usually covers the first 39 weeks of an employee's maternity leave.

Eligibility for statutory maternity pay

To be eligible for SMP, a pregnant employee must meet certain qualifying conditions.

For more information, see Statutory Maternity Pay and Leave: eligibility and proof of pregnancy.

The meaning of the term 'employee' for SMP purposes is different from the meaning for statutory maternity leave (SML) and other employment rights. This means that some workers who are not employees, eg agency workers, may qualify for SMP, even though they do not qualify for SML.

Statutory maternity pay rates and recovery

For the first six weeks you must pay your employee SMP a weekly rate equal to 90% of their average weekly earnings (AWE).

For the next 33 weeks you must pay them the lower of the following:

• The standard weekly rate of £187.18
• 90% of their AWE

You can recover some or all of your SMP payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions (NICs) liability.

Read more on statutory pay and leave.

Enhanced maternity pay

If you wish, you can offer enhanced maternity pay arrangements to attract and retain employees, which are more generous than the statutory entitlements.

For example, you could:

• pay more than SMP over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, SMP for the remaining 23 weeks
• make a bonus payment on the employee's return to work

You could change the qualification criteria for these enhancements, eg the employee needs a year's continuous service.

You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis, but use caution when exercising discretion to avoid claims of unfair treatment or discrimination.

You can still recover from HMRC the SMP portion of any enhanced maternity pay.