Maternity Rights

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Women who are pregnant now enjoy a range of legal rights as follows:-

Time off for antenatal care:

There is no minimum qualifying period of employment. The employee must produce evidence from a Doctor or midwife that they are pregnant and a document demonstrating a medical appointment for the purposes of ante-natal care. The right is not to be unreasonably refused paid absence from work to attend the appointment.

Protection from dismissal by reason of pregnancy:

There is no qualifying period of employment – and a dismissal on grounds of pregnancy or any reason associated with child birth is automatically treated as unfair dismissal. It will be a defence for the employer to show that there is good reason why it is not practical for the employee to return to the job.

Protection from detriment by reason of pregnancy:

There is no qualifying period of employment. An employer may not subject an employee to any detriment for reasons connected with pregnancy or the exercise of maternity rights.

Statutory Maternity Pay (SMP)

In order to qualify for SMP an employee must show:

  1. 26 weeks continuous employment ending with the 14th week before the expected date of birth.
  2. That she is absent from work on grounds of pregnancy.
  3. That her usual weekly earnings must be above the threshold at which National Insurance contributions becomes payable. (Presently £112 pw in 2016/2017)
  4. That the baby must either have been born or alternatively that the pregnancy has advanced at least until the 11th week before the expected date of birth.

If SMP is payable it is at the rate of 90% of average weekly earnings for the first six weeks and then up to £139.58 pw (at present) for the remaining 33 weeks. It is subject to Tax and National Insurance. 92% of SMP is recoverable by employers (small employers can claim an additional 4.2%).

Maternity Allowance:

If SMP is not payable an employee might be entitled to Maternity Allowance (MA) if

  • They have been employed or self employed for at least 26 of the 66 weeks before the baby is due.
  • They have earned an average of £30 over any 13 of these 66 weeks.

Maternity Allowance is currently
£139.58 or 90% of average weekly earnings (whichever is less) Maternity Allowance is not subject to Tax or National Insurance deductions.

Right to maternity leave:

Employees who are pregnant are entitled to maternity leave. This falls into three classes:-

  • Compulsory
  • Ordinary
  • Additional


It is an offence for an Employer to even permit an Employee to work in the two weeks immediately following actual birth.


The entitlement to ordinary maternity leave commences from the earlier of:-
(a) the first day of absence from work because of pregnancy/child birth.
(b) The date upon which the Employee notifies her employer of her intended absence for maternity leave. Notice must be given at least 15 weeks before the expected date of child birth and the leave period should not commence until 11 weeks before the anticipated birth date. The information the employee should give to the employer is the expected week of child birth and the date she wishes to commence maternity leave. Leave commences either from the date notified by the Employee or earlier if she is absent from work for a pregnancy related reason. The entitlement is to 26 weeks leave.


An employee with a minimum of 26 weeks employment at the beginning of the 14th week before the expected date of child birth has the right to additional maternity leave – an additional period of up to a further 26 weeks to be taken on the election of the employee.



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Chris Kingham

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