Maternity, paternity and adoption leave and pay FAQs

12 FAQs about maternity, paternity and adoption leave and pay

1. How much is statutory maternity pay?
2. When is statutory maternity payable?
3. Is a part-timer entitled to statutory maternity pay?
4. Who pays statutory maternity pay?
5. What evidence do I need of the baby's due date before I can reclaim statutory maternity pay?
6. Do employees matched with a child for adoption get the same entitlement to leave and pay as a pregnant employee?
7. What do we have to give new mothers (and fathers) by way of maternity and paternity leave, and do we have to pay them for it?
8. When can an employee start ordinary maternity leave?
9. Is a new employee entitled to maternity leave?
10. Do I have to keep an employee's job available for her if she goes on maternity leave?
11. Can an employee take the remainder of his partner's maternity leave and when she returns to work?
12. How much notice of return does a new mother have to give, and can we postpone her return?

1. How much is statutory maternity pay?

There are two rates of statutory maternity pay (SMP). For the first six weeks, SMP is paid at the higher rate, ie 90% of the employee's normal weekly earnings. Following a case at the European Court of Justice, 'normal weekly earnings' have to include any pay rises made up to the end of her maternity leave.

For the remaining 33 weeks, SMP is paid at the lower rate of £184.03, or 90% of the woman's average earnings, whichever is lower.

Mothers have the right to transfer a proportion of their maternity leave and pay to fathers. To qualify for additional paternity leave and pay, your employee must:

• be the father of the baby
• be the husband/partner/civil partner of the mother
• have at least 26 weeks' service by the 15^th week before the baby is due
• earn at least £123 per week
• be taking time off to care for the baby
• have at least two weeks of the mother's maternity leave remaining

The leave can be taken at any time from 20 weeks after the baby has been born. Leave can last between two and 26 weeks and must end before the baby's first birthday.

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2. When is statutory maternity payable?

Statutory maternity pay (SMP) lasts for 39 weeks and must be paid to any pregnant employee, provided that she:

• has 26 weeks' continuous service by the 15^th week before the week in which the baby is due
• is an employed earner and earns at least the lower earnings limit of £123 per week for the eight weeks up to and including the 15^th week before the week in which the baby is due
• has produced medical evidence of the week in which the baby is due (form MAT B1)
• has given 28 days' notice of the date on which she wishes to start SMP
• has reached the 11^th week before the expected week of childbirth (EWC)
• has begun her maternity leave

For the rates at which it is paid, see 1. If an employee does not qualify for SMP, she may well qualify for maternity allowance (see 3).

You must continue paying maternity pay even if the baby dies. Maternity pay is also payable if the baby is stillborn after 24 weeks' of pregnancy. You will need evidence of the stillbirth before making the payment.

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3. Is a part-timer entitled to statutory maternity pay?

She will qualify for maternity allowance, provided that she:

• has been employed (or self-employed) for at least 26 weeks (including part-weeks) within the 66 weeks up to and including the week in which the baby is due to be born
• has earned at least £30 a week in at least 13 of those weeks
• has reached the 11th week before the expected week of childbirth (EWC)
• is not receiving statutory maternity pay (SMP)

Maternity allowance is now payable for up to 39 weeks (previously 26 weeks) at a standard weekly rate of £184.03, or 90% of average weekly earnings if lower.

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4. Who pays statutory maternity pay?

You, as employer, pay statutory maternity pay (SMP). But you can recover 92% of the amount of SMP paid by deducting that amount from your National Insurance contributions payments to HM Revenue and Customs. If you are a small employer, you may recover 100% of SMP paid plus an additional 3% compensation. You qualify as a small employer if your NI contributions amount to not more than £45,000 a year.

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5. What evidence do I need of the baby's due date before I can reclaim statutory maternity pay?

You need a completed form MAT B1 from your employee or a letter from her doctor or midwife which must show:

• the employee's name
• when the baby is due
• the date of the medical examination
• the date of signing
• the signature of the doctor or midwife
• the doctor's stamp, or the midwife's PIN number

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6. Do employees matched with a child for adoption get the same entitlement to leave and pay as a pregnant employee?

Yes. Parents matched with a child for adoption have the same eligibility for statutory leave and pay as those taking maternity leave - see 1. Surrogate parents are also now eligible for adoption leave.

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7. What do we have to give new mothers (and fathers) by way of maternity and paternity leave, and do we have to pay them for it?

All mothers are entitled to 26 weeks' ordinary maternity leave plus a further 26 weeks' additional maternity leave, irrespective of their length of service, provided they give you proper notice. Statutory maternity pay (SMP) is paid to qualifying employees for 39 weeks. To qualify for SMP the employee must:

• have 26 weeks' continuous service by the 15^th week before the week in which the baby is due
• earn at least the lower earnings limit (£123 per week) for the eight weeks up to and including the 15^th week before the week in which the baby is due
• produce medical evidence of the week in which the baby is due (form MAT B1, usually given to a pregnant woman by her midwife or doctor)
• give 28 days' notice of the date on which she wishes to start SMP
• have reached the 11^th week before the expected week of childbirth (EWC)

For the rates at which it is paid, see 1. If an employee does not qualify for SMP, she may well qualify for maternity allowance (see 3).

Fathers are entitled to two weeks' ordinary paternity leave (which can be taken together or separately), paid on the same basis as maternity pay, at or around the birth of the child, for the purpose of caring for the child or supporting the mother. Paternity leave must be taken within 52 weeks of the baby's birth (or placement in the case of adoptions). It cannot be taken before the baby has been born (or has been placed, in the case of adoption).

Fathers, partners and parents-to-be also have the right to take unpaid time off work to attend up to two ante-natal appointments prior to the birth.

In order to qualify for paternity leave, the father (or co-adopter) must have at least 26 weeks' service with you by the 15^th week before the expected week of childbirth. They must be the biological father of the child or the husband or partner of the child's mother. They must also have, or expect to have, responsibility for bringing up the child.

Any employee who has at least one year's service with an employer is also entitled to take up to 18 weeks' unpaid parental leave for the purpose of caring for a child. Parental leave may be taken until the child's 18^th birthday. Employees must give 21 days' notice before their intended start date.

Entitlement to parental leave is in respect of employment with all employers. So when you are taking on new employees, it is advisable to check with their previous employers as to how much parental leave, if any, they have taken.

Parental leave may be taken in blocks or multiples of one week, up to a maximum of four weeks per child in any one calendar year.

Parents in England, Wales and Scotland now have greater flexibility to arrange time off in the year after the birth or adoption of their baby as Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP).

Employees can take SPL in up to three separate blocks. They can also share the leave with their partner and choose how much time off each of them will take. SPL and ShPP must be taken between the baby's birth and first birthday (or within one year of adoption).

An employee must give at least eight weeks' notice of any leave they wish to take. SPL can be used either alongside, or instead of, traditional maternity, adoption and paternity leave.

All employed parents now also have the right to two weeks' leave if they lose a child under the age of 18 or suffer a stillbirth from 24 weeks' of pregnancy. Eligible parents can claim £184.03 or 90% of AWE, whichever is lower.

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8. When can an employee start ordinary maternity leave?

A pregnant employee can start ordinary maternity leave any time after the beginning of the 11th week before the week in which the baby is due.

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9. Is a new employee entitled to maternity leave?

Yes, she will be entitled to 26 weeks' ordinary maternity leave plus additional maternity leave of a further 26 weeks, irrespective of her length of service, provided she gives you proper notice (see below).

In most cases, employees will also be entitled to maternity pay (see 2) or maternity allowance (see 3).

To qualify for ordinary maternity leave, your employee must notify you by the end of the 15^th week before the week in which the baby is due (or if that is not reasonably practicable, as soon as is reasonably practicable) of:

• her pregnancy
• the expected week of childbirth
• the date on which she intends to start ordinary maternity leave

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10. Do I have to keep an employee's job available for her if she goes on maternity leave?

You must keep the same job available for those who return from ordinary maternity leave. You must also keep the same job available for those who return from additional maternity leave unless it is not reasonably practical to do so. In that case, if a different job is offered, it must be on the same terms and conditions as if she had never been absent.

The courts have interpreted the meaning of 'same job' by considering the nature of the job, the employee's capacity to do it and where it would be performed.

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11. Can an employee take the remainder of his partner's maternity leave and pay when she returns to work?

Your employee is entitled to take his partner's unused maternity leave and pay as shared parental leave if he:

• has been employed continuously by you for 26 weeks by the end of the 15^th week before the due date
• stays with you while taking SPL
• is an employee not a 'worker'
• earns at least £123 per week

He can take unused leave and pay at any time from two weeks after the baby is born (or placed for adoption) providing the mother has returned to work and meets qualifying criteria.

The leave must be taken before the child's first birthday, with up to 50 weeks' leave and 37 weeks' pay shared between the parents. Shared parental leave and pay can be taken in blocks and parents can take blocks at the same time as each other.

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12. How much notice of return does a new mother have to give, and can we postpone her return?

She does not have to give you any notice at all if she intends to return to work at the end of her maternity leave. If she intends to return before that, she should give you at least eight weeks' notice. If the employee has adopted 'employee shareholder status', she will have to give you 16 weeks' notice if she wishes to return early.

If she fails to give adequate notice, you can postpone her return to give yourselves eight weeks' notice. You cannot postpone her return to a date later than the end of her ordinary or additional maternity leave, except with her agreement.

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