Your duties and responsibilities to your employees on maternity leave
If you have employees who are expecting or have recently had a baby and you are unsure of your responsibilities as an employer, our factsheet will help.
Your employees are entitled to take up to one year’s statutory maternity leave regardless of their length of service. This consists of 26 weeks Ordinary Maternity Leave (OML) followed by 26 weeks Additional Maternity Leave (AML). During this time they are entitled to the benefit of all of the terms and conditions of employment which would have applied had they not been absent, except for the terms and conditions relating to pay. All employees must take a minimum of two weeks’ maternity leave from the day of birth.
Statutory maternity pay lasts for 39 weeks for those who qualify. Non-eligible individuals may qualify for Maternity Allowance. The first 6 weeks are paid at 90% of normal pay, the remaining 33 weeks at a standard rate (currently £156.66).You may provide more generous terms and/or payments in a contracts of employment if you wish to do so.
Your employees are entitled to work for you during maternity leave for up to 10 days without bringing that leave to an end. These are known as “keeping in touch” (KIT) days. These should be paid at the normal rate of pay for days worked. However, your employee cannot insist on being given KIT days and neither can you require them to work any.
Your employee’s statutory paid annual leave (5.6 weeks) continues to accrue during ordinary maternity leave and additional maternity leave.
During ordinary maternity leave, or if your employee returns before the end of ordinary maternity leave, they are entitled to return to the same job in which they were employed before they left. After additional maternity leave, your employee is generally entitled to return to work to the same job, on the same terms and conditions as if she had not been absent. But, if there is some reason (other than redundancy) why it is not reasonably practicable for you to permit your employee to return to the same job (for example, if there has been a reorganisation), you have more flexibility than this.
Your employee on maternity leave has special protection from redundancy. Where a redundancy situation means it is not practical to continue to employ a woman on maternity leave under her existing contract of employment, she must be offered any suitable alternative vacancy. She is given priority over and above any another employee who is also at risk of redundancy but not on maternity leave. This can also be with an associated company. The terms and conditions must not be substantially less favourable than those of the previous contract.
This preferential treatment of women on maternity leave over other employees during a redundancy procedure is a rare example of lawful positive discrimination.
You are under a duty to make a suitable and sufficient assessment of the risks to health and safety which your employees are exposed to while at work. You are required to record the findings of the assessment, but you are not obliged to hand over those findings to your employee if information about the risks is provided orally.
Where you are an employer that employs any women of child-bearing age to do work of a kind that could involve risk to the health and safety of a new or expectant mother or her baby from any processes, working conditions or physical, chemical or biological agents, you must include an assessment of those risks in its risk assessment.
Breastfeeding covers both feeding the baby and expressing milk. You must provide suitable facilities for breastfeeding mothers to rest (including facilities to lie down) and to provide adequate rest and meal breaks. Toilets are not “suitable facilities”.
There is no statutory right to time off work for breastfeeding. There is also no legislation which requires the provision of facilities for breastfeeding itself. However, the Health & Safety Executive guidance recommends that other facilities (such as a private, clean environment, other than the toilets, for expressing milk and a fridge for storing it) should be provided.
All of your employees with a child under 17 have the right to request flexible working. You must give proper consideration to the request using the required statutory procedures.
Regardless of their length of service, any of your employees dismissed when they are on maternity leave are entitled to receive written reasons for their dismissal without having to request them.
It is automatically unfair to dismiss a female employee or select her for redundancy due to maternity. There is no minimum qualifying service period.
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