Understanding Your Rights

It is against the law for an employer to discriminate or treat a woman unfavourably because of their pregnancy, or because they have given birth recently, are breastfeeding or on maternity leave. Employees have the right to take reasonable time off for antenatal appointments (including travel time) without loss of pay. This isn’t just for medical appointments. It can also include parenting classes if recommended by a doctor or midwife. These rights apply regardless of how long you have worked for your employer, or the number of hours you work each week.

If you are pregnant, have recently given birth or are breast feeding, your employer should immediately take into account any risks identified in their workplace risk assessment (which should have considered female employees of childbearing age, including new and expectant mothers).

To exercise your health and safety rights you must:

• tell your employer in writing that you are pregnant or breast feeding, or that you have given birth in the last six months

• if your employer asks in writing for proof that you are pregnant, show them your MATB1 form (the maternity certificate that your doctor or midwife will give you) or a doctor’s letter

• discuss any job-related concerns about your health or the health of your baby with your doctor or midwife. If they advise you that there could be a risk, ask for a letter to show to your employer so that they can take this into account.

Your employer must:

• have taken into account any risks identified in the workplace risk assessment from any processes, working conditions, physical, chemical and biological agents that could jeopardise your health or safety or that of your child while you are pregnant, breast feeding, or have given birth within the previous six months

• if the assessment reveals a risk, do all that is reasonable to remove it or prevent your exposure to it

• give you information on the risk and what action has been taken

• if the risk remains, temporarily alter your working conditions or hours of work, if this is reasonable and if this avoids the risk

• if that is not possible offer you suitable alternative work (on terms and conditions which are not substantially less favourable than your original job)

• if this is not possible, suspend you on full pay (ie give you paid leave) for as long as is necessary to avoid the risk.

All women employees are entitled to 52 weeks maternity leave. This applies regardless of length of service or the number of hours worked each week. Your maternity leave will be divided into 26 weeks Ordinary Maternity Leave (OML) and 26 weeks Additional Maternity Leave (AML) starting on the day after the end of OML. There are different rights to return to work depending on whether you return after OML or AML.

You can start your maternity leave any time from the 11th week before your baby is due (unless you give birth before then), providing you give the correct notice (in writing if they ask for it) in or before the 15th week before your baby is due. This is the latest time you can tell your employer that you are pregnant, although you may chose to tell them earlier to take full advantage of your maternity rights. You must also confirm your expected week of childbirth and the date on which you intend to start your maternity leave before the end of this week. If you want to change the date you start your leave, you must give notice at least 28 days before the new date or the old date, whichever is earliest.

Once you have given notice, your employer must write to you within 28 days and state the date you are expected to return from maternity leave. While on leave, you can change your return to work date if you give your employer eight weeks’ notice.

Statutory Maternity Pay (SMP) is paid for 39 weeks by your employer, who then claims most of it back from HM Revenue and Customs (HMRC). You will no have to repay any SMP if you decide not to go back to work.

You must give your employer proof of pregnancy such as your MATB1 form within 21 days before you wish to start your pay – although most women choose to give this form in when giving notice of maternity leave. If your employer believes you are not entitled to SMP, they must give you form SMP1.

Qualifying conditions

You can get SMP if:

• you have worked for the same employer for at least 26 weeks by the end of the 15th week before your expected week of childbirth

• you are still in the same job in the 15th week before your baby is due

• you are paid at least £123 (before tax)* per week in earnings, on average in the eight weeks (if you are paid weekly) or two months (if you are paid monthly) up to the last pay day before the end of the 15th week before your baby is due.

• You give the correct notice, at least 28 days’ notice (in writing if they ask for it) of the date you want your pay to start. SMP usually starts on the same day as your maternity leave.

• You provide proof of pregnancy (MATB1 certificate)

If you leave your job or are dismissed after the 15th week before your baby is due, you will still be entitled to SMP. You can find the calculator here: https://www.gov.uk/maternity-paternity-pay-leave

*2022 threshold is quoted – threshold normally changes each April

Maternity Allowance (MA) is a benefit for women who are working, or have worked recently, but who do not qualify for Statutory Maternity Pay (SMP).

You might get MA if:

- you are employed , but not eligible for SMP

- you are registered self-employed and paying Class 2 National Insurance Contributions (NICs), or hold a Small Earnings Exception certificate

- you have recently been employed or self-employed

- you are not employed or self-employed, but you regularly take part in the business of your self-employed spouse or civil partner

If you qualify for it, MA is paid by Jobcentre Plus directly to you. MA can be paid for up to 39 weeks. If you are not employed or self-employed but you take part in the business of your self-employed spouse or civil partner you may be able to get MA for 14 weeks.

You cannot get it in addition to SMP, and it could affect any other benefits you claim, such as Universal Credit or Tax Credits. The amount you get depends on your eligibility.

If you qualify on the basis of paid work: MA is paid at either 90 % of average earnings or the £156.66* (whichever is lower) for 39 weeks. *2022 threshold is quoted – threshold normally changes each April

The rules about Maternity Allowance can be complicated. The best ways to check what you can get are to use the calculator on GOV.UK or contact your nearest Citizens Advice for help.

You can agree to work for your employer for up to 10 days without interrupting your maternity leave or pay. These are called ‘keeping in touch days’. Any work you do should use a keeping in touch day - including going to training or meetings.

You should be paid for keeping in touch days. How much you get depends on your contract, but it must be at least the minimum wage.

You need to agree keeping in touch days with your employer - they can’t make you do them, but you can’t demand them either. You can arrange keeping in touch days for any time outside the first 2 weeks after your baby is born (4 weeks if you work in a factory).

When you go back to work after Ordinary Maternity Leave (OML), you have the right to return to exactly the same job. When you go back to work after Additional Maternity Leave (AML), you also have the right to return to 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.

You do not have to give any notice if you are returning to work at the end of the full 52 weeks of your maternity leave. If you wish to return to work early, or to change the date of your return to work you must give your employer at least eight weeks’ notice of the date you will be returning.

If you decide that you no longer wish to return to work following your maternity leave you should resign as normal and give your employer the notice required by your contract of employment. If you are not well enough to return to work at the end of your maternity leave then normal contractual arrangements for sickness absence will apply.

You can ask your employer for flexible working at any time. It could mean changing your days or hours, working from home or switching from shifts to a regular work pattern. Usually these changes will be permanent, so work out what changes will be best for you before you ask. You can ask your employer for a trial period to test out the changes.

When you ask for flexible working your employer doesn’t have to say yes, but they should:

· arrange a meeting to discuss your request

· give you a decision within 3 months

· give you their answer in writing, including their reasons if they refuse

Your employer shouldn’t end your employment or treat you poorly for asking to work flexibly. For example, they aren’t allowed to use your request as an excuse to give a promotion to someone else instead of you.

It’s up to you to decide how long you want to give your baby your milk. The law does not provide a specific right to breastfeed on return to work but the law does require employers to protect the health and safety of mothers who have given birth in the last six months and mothers who are breastfeeding (regardless of how long you wish to breastfeed). In order to protect your health and safety you must notify your employer in writing that you are still breastfeeding.

Your employer must review the workplace risk assessment and take reasonable action to remove any health and safety risks to you or your baby. If the risks cannot be removed or reduced your employer must offer you suitable alternative work (or suspend you on full pay if there is no suitable alternative work available) for as long as the risks remain.

By law, employers must provide a suitable place for breastfeeding mothers to rest. The Approved Code of Practice issued by the Health and Safety Executive says that this should include the ability to lie down. This obligation lasts as long as the mother wishes to continue breastfeeding.

Employers do not have to provide facilities for mothers to breastfeed but the Health and Safety Executive says that it is good practice for employers to provide suitable facilities such as a private room, washing facilities and clean fridge or section of a fridge for expressing and storing milk. The toilets are not regarded as a suitable place.

If you decide not to go back to your job, your contract will tell you how much notice you need to give your employer. If there’s nothing in your contract, you need to give at least a week’s notice.

Make sure you get paid for any holiday you have left - including the time you built up while you were on maternity leave.

Check whether you’d need to pay back any maternity pay

If you get contractual maternity pay you might only keep your full amount if you return to work.

You won’t need to pay back statutory maternity pay or Maternity Allowance, even if you don’t return to work.

If you get contractual maternity pay, your contract or employee handbook will tell you how long you need to spend back at work to keep your full contractual maternity pay.