Business Law

Maternity & Paternity Rights and Parental Leave in Your Business

Only employees qualify for Maternity Leave, rather workers and the self-employed. 

To exercise the right the Maternity Leave your employee must tell you before the end of the 15th week before her baby is due that she is:

  • Pregnant, and
  • the expected week of child birth, and
  • the date she intends to start her maternity leave

Maternity leave breaks down into two sections, Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML).

OML is taken for the first 26 weeks, followed straight away, if the employee opts to take it, by 26 weeks AML.

If your employee returns to work at the end of OML, she is entitled to return to her original job.  However, is she returns to work during or after AML, you are not required to keep the same job open for her, but you can offer a similar role.

Once your employee has advised you that she is pregnant; when she expects her child and the date she intends to start her maternity leave, within 28 days you must confirm to her the date you anticipate she will return to work.  She can change that return date, but she must give you 8 weeks’ notice. 

In order to qualify for Statutory Maternity Pay (SMP) your employee must have worked for you for at least 26 weeks ending in the 15th week before the baby is due and earn at least £102 per week.  She is entitled to SMP for 39 weeks.  The first 6 weeks are paid at 90% of normal pay.  The remaining 33 weeks are paid at the rate of £128.73 per week or 90% of earnings, whichever is the lower.  These are current figures and are reviewed annually.

During your maternity leave you can return to work for up to 10 days, which are known as “Keep in Touch” (KIT) days.  As long as you do not work for more than 10 days you remain entitled to SMP.  However, if you return to work for more than 10 days you will lose your entitlement to SMP. 

Employers can claim back SMP payments from tax, NICs an student loan deductions have to pay to HMRC during the month of payment.  If your annual liability for Class 1 National Insurance contributions is £45,000 or less, you are entitled to claim back 100% of the SMP and plus, currently, 4.5% of the total SMP figure by way of compensation.  If you pay more than £45,000 per annum, the rate is 92% with no compensation element.  The HMRC website (www.hmrc.gov.uk) has a useful SMP calculator.

Paternity Leave

To qualify for paternity leave the employee must have been employed for 26 weeks before the end of the week 15 weeks before their baby is due or at the end of the week they were notified that they had been matched with their child.  They must be the mother’s husband or partner or be the adoptive father or the husband or partner of an adopter. 

Employees have the right to either one or two weeks ordinary paternity leave (OPL).  They cannot take this time in odd days and they cannot take the two weeks at separate times.  They must either take one week only, or two weeks consecutively. 

In order to qualify for OPL your employee must tell you when their baby is due; whether they intend to take one or two weeks paternity leave and when they wish to start their paternity leave. 

They are entitled to Statutory Paternity Pay (SPP) for the paternity leave weeks they take at the rate of £128.73 per week or 90% of normal pay, whichever is the lower.

Fathers are now entitled to additional paternity leave (APL), for up to 26 weeks, if their partner has returned to work. APL can be taken between 20 weeks and one year after their child is born. Additional parternity pay (APP) is paid at the rate of £128.73 per week, or 90% of earnings whichever is lower. The childs mother must have been entitled to one or more of the following:- Statutory Maternity Leave, Statutory Maternity Pay, Maternity Allowance or Statutory Adoption Leave or Pay.

Fathers can take unpaid APL if they meet the criteria for leave but not pay.

As with SMP, this can be recovered against tax and NI, and there is advice and a calculator on the HMRC website.

Parental Leave

Both parents are entitled to take parental leave. 

They are entitled to take this leave at any time whilst their child is under 5 years of age or under 18 years of age if the child is disabled.  The employee must be named on the child’s birth certificate or adoption certificate and have parental responsibility. 

Each parent is entitled to 13 weeks’ paternity leave, and this leave cannot be transferred between them.  For instance, one parent cannot take 20 weeks and the other 6 weeks.  The leave can be taken any time up to the child’s 5th birthday or 18th birthday if the child is disabled. 

Parental leave is unpaid. 

Flexible Working

Parents or those with dependants are entitled to request flexible working upon their return from maternity or paternity leave.  Details of flexible working rights are provided in our article “Flexible Working Arrangements”.

For further information please contact:

Marina Vincent on 020 8422 5678