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Nine Months : Your maternity rights - FAQs



STATUTORY ADOPTION LEAVE AND STATUTORY ADOPTION PAY

Am I entitled to maternity leave?

You are entitled to maternity leave if you are an employee. There are two lengths of maternity leave depending on how long you have been working for your employer: Ordinary Maternity Leave and Additional Maternity Leave. If you are not an employee, see Agency Workers section or Self-Employed section.

How much maternity leave can I take?

Ordinary Maternity Leave (OML) lasts for 26 weeks. It doesn't matter how many hours you work or how long you have worked for your employer, all employees are entitled to ordinary maternity leave from day one.

Additional Maternity Leave (AML) lasts for 26 weeks and starts at the end of ordinary maternity leave. You are entitled to take additional maternity leave if you have worked for your employer for 26 weeks by the 15th week before your baby is due.

When can I start maternity leave?

You can start your leave up to 11 weeks before your baby is due or you can work right up to due date if you wish. Your employer can only 'trigger' your leave if you are off sick with a pregnancy-related illness in the last four weeks of your pregnancy.

Do I have to give notice to take maternity leave?

Yes, to take maternity leave you must give notice to your employer in or before the 15th week before your baby is due and tell them:

That you are pregnant
The expected week of childbirth
The date on which you intend to start your ordinary maternity leave.

If this is not possible then give notice to them as soon as you can.

If you are entitled to additional maternity leave your employer should assume that you will be taking it. Therefore if you do not wish to take additional maternity leave or you want to return to work before the end of it you should give 28 days notice that you are returning to work early. See Returning to work section below.

Can I do some part-time work during my maternity leave?

Yes, you are allowed to do another job during your maternity leave providing you follow any rules at your workplace about doing a second job. However, if you are still receiving maternity pay you may not be entitled to receive it during any week that you work.

What happens when I go back?

When you go back to work after OML, you have the right to return to exactly the same job.

When you go back to work after AML, you also have the right to return to exactly the same job. But, if your employer can show that it is not reasonably practicable for you to return to the same job, for example, because the job no longer exists, you have the right to be offered a suitable alternative job on very similar terms and conditions.

Do I have to give notice of my return from maternity leave?

You do not need to give any notice of return if you are going back to work at the end of maternity leave. You simply go to work on the day that you are due back:

If you are entitled to OML you will be due back to the work on the day after the end of the 26 week period.
If you are entitled to AML you will be due back to work on the day after the 52 week period.

If you want to return to work before the end of your maternity leave, you must give your employer at least 28 days' notice of the date you will be returning. If you do not give this notice and just turn up at work before the end of your maternity leave, your employer can send you away for up to 28 days or until the end of your leave, whichever is earlier.

Note: if you are entitled to AML but only wish to take OML you must give 28 days notice of your return as you are in fact returning early.

The law does not allow you to work for two weeks after childbirth and this period is known as Compulsory Maternity Leave. You will not be allowed to return to work during this time.

Am I entitled to Statutory Maternity Pay?

Statutory Maternity Pay 'SMP' is maternity pay lasting 26 weeks. For the first six weeks you receive 90% of your average pay. After that you receive a 'basic rate' for 20 weeks which is 102.80 per week (or 90% of your average earnings if that is less).

You will be entitled to SMP if:
- you have been employed by your present employer for at least 26 weeks by the end of your 'qualifying week' (the 15th week before your baby is due)
- you are still employed in the 15th week before your baby is due - even if you are off sick or only work part of the week, and
- you actually receive at least 79 per week before tax on average in the eight weeks (if you are paid weekly) or two months (if you are paid monthly) before the end of your qualifying week.

To claim SMP you must give your employer 28 days notice and give them your MATB1 maternity certificate which your midwife will give you when you are about 20 weeks pregnant.

How do I work out the 'qualifying week'?

The qualifying week for SMP is the 15th week before your baby is due. Find the Sunday before your baby is due and count back 15 weeks. That is the start of your qualifying week.

I am on a temporary contract. Can I still get SMP if my contract ends?

Before the start of your maternity leave: To get SMP you must be employed in all or part of your qualifying week - even for one day. It doesn't matter if you are on holiday or off sick in that week. If your job ends in or after your qualifying week but before the start of your maternity leave you are still entitled to SMP. SMP will start on the Sunday after your employment ends or the Sunday of the 11th week before your baby is due (if that is later).

After the start of your maternity leave: If your contract ends after you have already started your maternity leave your SMP will continue to be paid.

Once you have qualified for SMP it is payable for the full 26 weeks even if your contract ends during the SMP period. If your contract ends before your qualifying week and you do not qualify for SMP you may be able to get Maternity Allowance instead.

Do I have to repay my maternity pay if I decide not to return to work?

No, all of the Statutory Maternity Pay (paid for 6 weeks at 90% of your salary and 20 weeks at 102.80 per week) is yours to keep whether you go back or not. Your employer gets most of it back from the government anyway. If your employer pays contractual maternity pay, such as full pay, any additional maternity pay over and above the Statutory Maternity Pay would only have to be repaid if that was agreed in advance or was stated in your contract. You NEVER have to repay the Statutory Maternity Pay.

I do not qualify for Statutory Maternity Pay, Can I get any other maternity pay?

You may be entitled to Maternity Allowance. This is a benefit for women who have changed jobs during pregnancy and/or are self employed or have had periods of low earnings or unemployment during their pregnancy. Maternity Allowance lasts for 26 weeks. It is 102.80 a week for 26 weeks or 90% of your average earnings if that is less.

You can get Maternity Allowance if:

you have worked for 26 weeks during the 66 weeks before your baby is due, and you can find 13 weeks in which you earned over 30 a week.

To claim Maternity Allowance, ask your local Jobcentre Plus for form MA1.

Do I have to tell my employer that I am pregnant?

It is up to you to decide when you want to tell your employer that you are pregnant. Legally you do not have to tell your employer until you give notice for maternity leave and pay in the 15th week before your baby is due but you will need to tell them in order to benefit from the rights below such as paid time off for antenatal care and health and safety protection.

If you go for a job interview you do not have to tell the employer that you are pregnant and it would be sex discrimination to refuse to employ a woman because of pregnancy. Note that you will not receive SMP if you change jobs during pregnancy but you may get Maternity Allowance instead.

Can I take sick leave during pregnancy?

Yes, you should follow your employer's normal sickness reporting policy. You are entitled to any sick pay that your employer normally gives. Your employer should record any pregnancy-related sick leave separately from other sick leave and it should not count towards your total sickness absence for disciplinary or redundancy purposes. It is against the law for your employer to dismiss you or treat you less favourably because of your pregnancy or for having taken sick leave during your pregnancy. Your employer can only 'trigger' your maternity leave if you are off sick for a pregnancy-related reason in the four weeks before your baby is due.

Note that if you only receive Statutory Sick Pay and you are off sick in the middle of your pregnancy it may affect your maternity pay.

Can I take paid time off for Antenatal Care and what does 'Antenatal Care' cover?

Yes, if you are an employee you have the right to reasonable time off work for antenatal care and you have the right to be paid for this time off. The term 'Antenatal Care' can include time off for parentcraft or relaxation classes as long as they are taken on the advice of your midwife or doctor.

Do I have extra health and safety protection when I am pregnant or when I am breastfeeding?

If you are pregnant, have recently given birth or are breastfeeding, your employer must make sure that the kind of work you do and your working conditions will not put your health or your baby's health at risk. To get the full benefit of this protection you must notify your employer in writing that you are pregnant or have recently given birth or are breastfeeding.

Your employer should carry out a risk assessment of your working conditions and if any working conditions are found to be a risk to your health or your baby your employer must remove or reduce that risk. If the risks remain they must temporarily alter your working conditions or hours of work to remove the risk. If this is not possible your employer must offer you a suitable alternative job. If they can't offer you a suitable alternative job, your employer should suspend you on full pay for as long as is necessary to avoid the risks.

Do I have any rights if I am treated badly at work because of my pregnancy or my maternity leave?

Yes. It is against the law for your employer to treat you unfairly, dismiss you or select you for redundancy for any reason connected with your pregnancy, childbirth or maternity leave. If you are dismissed while you are pregnant or during your maternity leave, your employer must give you a written statement of the reasons for the dismissal. If you are dismissed or treated unfairly you can bring a claim in an Employment Tribunal for detrimental treatment, unfair dismissal and sex discrimination.

What can I do if there is a dispute at work about my maternity rights?

Most employers and their advisers are not familiar with the law on maternity rights, so if you have a problem it may help you achieve a solution if you show them a Maternity Alliance factsheet explaining the law. Rights such as returning to work part time are not very well known at all and your employer may not know that they are in danger of breaking the law.

You could write a letter to your employer explaining your views and send them one of the Maternity Alliance factsheets explaining your legal rights. Try to sort the problem out amicably. It may be that your employer is just mistaken or confused, rather than deliberately trying to treat you badly.

You could ask for a meeting to discuss the problem. You can take someone into the meeting with you such as a friend, colleague, relative or union representative.

If you are not happy with how your employer has handled the situation you could make a formal complaint using the complaints or grievance procedure at your work.

If you cannot negotiate a solution you will have to decide whether to take things further by making a claim to an Employment Tribunal. The time limit for making a tribunal claim is three months.

What am I entitled to during maternity leave?

During the first 26 weeks of leave (your OML period) your contractual rights (i.e. terms and conditions, such as a company car or paid holidays) continue as if you were still at work, apart from your normal pay.

During the rest of your time on leave (your AML period) you will continue to be an employee, but the only contractual rights which will continue automatically will be:

- the notice period in your contract of employment will still apply (if either you or your employer wish to terminate your employment)
- you will be entitled to redundancy pay (after two years' service)
- disciplinary and grievance procedures will apply
- if your contract has a section which states that you must not work for any other company, this will still apply.

It might be possible to negotiate with your employer for other contractual rights to continue.

During the whole of your maternity leave you are still entitled to your statutory rights (i.e. rights that apply by law to all employees in this country). For example, everyone has a legal right to 20 days paid annual leave whether they are on maternity leave or not. Also your employer must not discriminate against you by failing to consider you for opportunities such as promotion.

What happens to my holidays during maternity leave?

You continue to accrue your contractual holiday during your first 26 weeks of ordinary maternity leave. During additional maternity leave you will continue to accrue statutory paid holiday of 20 days per year. Working out your holiday entitlement during maternity leave and when to take your holiday is complicated.

What happens to Bank Holidays that fall during my maternity leave?

Unfortunately you are not entitled to pay for Bank Holidays that fall during your maternity leave period - either paid or unpaid leave. Any fixed holidays at your workplace such as Christmas shutdowns or public holidays that fall during your maternity leave period are lost.

My employer has told me my job is redundant. What are my rights?

It is unfair dismissal and sex discrimination to select a woman for redundancy because she is pregnant or on maternity leave. If the redundancy is not connected to your pregnancy or the fact that you are on maternity leave you may be entitled to redundancy and notice pay. If you are made redundant whilst on maternity leave, your employer must offer you any suitable alternative work that is available. If there is none, they must pay you any notice and redundancy pay that you are entitled to.

If I work in a small firm employing less than 5 people, do I have the same rights to the longer maternity leave?

You do have the right to additional maternity leave. However, if your employer can show that it is not possible to keep your job open or to offer you a very similar job, then you cannot 'automatically' claim you have been unfairly dismissed if your job is not available at the end of your leave. You may still have unfair dismissal and sex discrimination claims and you may be entitled to redundancy pay.
Your other maternity rights are the same as if you were working for a larger employer.

I do agency work, will I be entitled to Statutory Maternity Pay?

Yes, you can get SMP from your agency if your agency deducts tax and national insurance from your earnings through PAYE and you meet the normal conditions for getting SMP (see Maternity Pay section above). However, unless you are regarded as an employee of the agency or the company where you are working, you do not have the right to maternity leave, parental leave or to have paid time off for antenatal care.

Can I get any maternity pay?

Yes, you may be entitled to Maternity Allowance if you have worked (including self-employment) for 26 weeks during the 66 weeks before your baby is due, and you can find 13 weeks in which you earned over 30 a week or paid Class 2 (self-employed) National Insurance contributions or held a certificate of small earnings exception.

To claim Maternity Allowance, ask your local Jobcentre Plus for form MA1.

Do I have to give notice to return to work at the end of maternity leave and will I be able to go back to the same job?

You do not have to give notice to your employer. Your employer must assume that you will be taking the maternity leave you are entitled to and that you will return at the end of the leave. In other words, if you are entitled to additional maternity leave, your employer should assume that you will be taking it unless you give notice to return early. If you wish to return early either from ordinary maternity leave or from additional maternity leave you should give your employer 28 days notice of the date you will be returning. If you are entitled to additional maternity leave but only want to take ordinary maternity leave you will need to give 28 days notice to return early.

Do I have the right to return to my old job?

When you go back to work after ordinary maternity leave you have the right to return to exactly the same job that you were in before you went on maternity leave. When you return after additional maternity leave your employer must give you back the same job or only if that is not reasonably practicable, a suitable job on very similar terms and conditions.

What happens if I say I want to return to work and I change my mind?

Many women find it impossible to know before the birth how they will feel afterwards, so it is always a good idea to say you are coming back in order to keep your options open. If you decide later not to return you can resign from your job in the normal way.

I have decided not to go back to work. What should I do?

You should resign in the normal way, giving the notice required by your contract or the notice period that is normally given in your workplace. If you do not have a contract or nothing has been said you should give a week's notice. You can 'work' your notice on maternity leave, you do not have to actually go back to work.

Note: You do NOT have to repay any of the SMP you received (6 weeks at 90% and 20 weeks at 102.80).

What happens if I need more time off work?

You cannot stay off work after your maternity leave has ended as you will lose your right to return to work if you do not go back at the end of your OML or AML (if you are entitled to it).

If you need more time off you could:

- ask your employer if you can take annual leave immediately after your maternity leave. Note that paid holiday continues to accrue during maternity leave so you may have some holiday owing to you.

- ask your employer if they will agree to a further period off work. You should ask your employer to confirm this agreement in writing and to confirm that you will have the right to return to the same job.

- take some Parental Leave at the end of your maternity leave.

- if you cannot return because you are ill you can take sick leave as long as you follow your employer's sickness procedures.

I am on maternity leave and have just discovered I am pregnant again. What rights will I have?

You have the same rights as before. Maternity leave does not break your continuity of employment, so your right to maternity leave for this baby will be based on your total service with your employer. You may also qualify for SMP as long as you meet the normal conditions. However, this will mean you will have to be receiving over 79 per week from your employer in approximately weeks 18-26 of your pregnancy when SMP entitlement is calculated.

If you have already taken OML and AML (a year off) you will be entitled to a second period of OML and AML. However, if you go straight onto another period of OML without physically returning to work and decide to return to work after the second period of OML, you will not have the right to return to exactly the same job as you normally would at the end of OML.

However, this will mean you will have to be receiving over 79 per week from your employer in approximately weeks 18-26 of your pregnancy when SMP entitlement is calculated. If you return to work after the end of your first period of AML and before the start of your second period of OML - even if you only return for one day - your rights are not affected and you would have the right to return to exactly the same job after OML.

Can I return to work part-time or on different hours?

You have the right to ask for part-time, reduced or flexible hours and your employer has a duty to seriously consider your request. Your employer must have a good business reason for refusing.

1. You have the right to have your request seriously considered under sex discrimination law (this right existed before April 2003) AND

2. from 6 April 2003 there is a new right for parents of young children to ask for flexible work using a set procedure.

Because it is not yet clear how the above two rights will work together from April 2003, we suggest that you carefully follow the procedure for asking for flexible hours under the new right and if your request is refused you should get advice about whether you have a claim for compensation under the new right AND under sex discrimination law.

Am I entitled to paternity leave?

You can take paternity leave if:

- you are an employee.

- you have worked for your employer for 26 weeks by the 15th week before the baby is due or, if the baby is born before then, you would have worked for your employer for 26 weeks by the 15th week before the baby is due.

- you are still employed by the same employer before the birth.

- you are the biological father or the mother's husband or partner (including same sex partners).

- you are responsible for the child and taking time off to care for the child or support the mother

How much paternity leave can I take?

You can take up to two weeks leave from work following the birth of a baby. You can take one week or two weeks in a row but not odd days or two separate weeks.

Paternity leave must be taken within 56 days of the birth or, if the baby is born before the expected week, paternity leave can be taken any time from the actual date of birth up to 56 days from the date the baby would have been DUE.

You cannot take longer for a multiple birth but you can take parental leave if you are entitled to it .

Do I have to give notice to take paternity leave?

To be entitled to paternity leave you must give notice to your employer in the 15th week before the baby is due and tell them:

when the baby is expected to be born
how much leave you wish to take
when you wish the leave to start, and
whether you wish to have one or two weeks paternity pay.

Am I entitled to Statutory Paternity Pay?

Statutory Paternity Pay is 102.80 per week (or 90% of average weekly earnings if this is less) for two weeks of paternity leave. You will be entitled to statutory paternity pay if:

you have worked for your employer for 26 weeks by the 15th week before the baby is due and are still employed by the same employer before the birth, and
earn 79 on average or more, and
sign a declaration saying that you are the baby's father or the husband/partner of the mother and are responsible for the baby's upbringing.

Do I have to give notice to get Statutory Paternity Pay?

You should give notice to your employer of when you wish your statutory paternity pay to start at least 28 days before you want it to start, or as soon as reasonably practicable. You can give notice at the same time as notice for paternity leave.

What is parental leave?

Parental leave is a right for parents to take time off work to look after a child. You can take 13 weeks parental leave per parent per child. It is usually unpaid but check your contract as some employers offer paid leave.

Who can take parental leave?

You can take parental leave if you are an employee and you have, or expect to have, parental responsibility for a child. You must have worked for your employer for one year.

How much parental leave can I take?

You can take up to 13 weeks for each child up to their fifth birthday. Parents of disabled children get 18 weeks in total to be taken up to their 18th birthday. (A "disabled child" is one for whom an award of disability living allowance has been made.) Check to see if there is a workforce or collective agreement at your workplace which sets out a parental leave policy at your workplace. If there is no agreement at your workplace the following rules apply.

Parental leave must be taken in blocks or multiples of one week up to four weeks a year. Parents of disabled children can take leave in blocks or multiples of one day,
you must give 21 days' notice in writing stating when you want to start your leave and how much you want to take.

When can parental leave be taken?

You can take parental leave at any time up to the cut off point which applies to you:

Parents of children born between 15 December 1994 and 14 December 1999 can take leave up to 31 March 2005

Parents of children born on or after 15 December 1999 can take leave up to their child's 5th birthday

Adoptive parents of children placed for adoption between 15 December 1994 and 14
December 1999 can take leave up to 31 March 2005 (or the child's 18th birthday if that is sooner)

Adoptive parents of children placed for adoption on or after 15 December 1999 can take leave up to the fifth anniversary of the date of placement (or the child's 18th birthday if that is sooner)

Parents of disabled children can take leave up to their child's 18th birthday

Can my employer refuse parental leave?

Your employer can postpone parental leave if they think that it would unduly disrupt the business. Your employer can postpone the leave for no longer than six months from the time that you originally wanted to start your parental leave. Your employer must notify you in writing no later than seven days after your notice to take leave, stating the reason for the postponement and setting out the new dates of parental leave.

Can leave be postponed if I want to take leave immediately after the birth of my baby?

No, your employer cannot refuse or postpone leave immediately after the birth of your baby. You must give 21 days' notice before the beginning of the expected week of childbirth.

My employer has refused to let me take parental leave?

You have the right to go to an employment tribunal if your employer prevents you from taking parental leave. You are also protected from victimisation, including dismissal, for taking it.

If my childminder is sick or if my child is sick can I take time off work?

You are entitled to take emergency time off to make arrangements for the care of a dependant. Time off for dependants is unpaid leave but check your contract as some employers give paid leave for family emergencies. You can take the leave to look after anyone of any age who is your dependant, not just a child. The amount of time you can take is not set in stone - it is 'what is reasonable to make arrangements for the care of the dependant' and it will depend on your particular circumstances. You do not have to give notice as the leave is only for dealing with urgent situations.

Am I entitled to any time off if I am adopting a child?

You are entitled to 26 weeks 'ordinary' adoption leave and 26 weeks 'additional' adoption leave if you have worked for your employer for 26 weeks by the week in which you are notified of being matched with a child for adoption. Statutory Adoption Pay will be paid at a flat rate of 102.80 per week (or 90% of average weekly earnings if this is less) for 26 weeks. When a couple adopt, they can choose who takes adoption leave and who takes paternity leave. You must notify your employer of the date you plan to start your leave when matched with a child. Adoption leave will be available to parents adopting a child who is 18 years of age or below when the child is placed for adoption. You are also entitled to parental leave and time off for dependants.




               

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