Statutory maternity leave: your rights
Every employee who has a baby has the right to take maternity leave. There is no need to have worked for your employer for any particular period of time, and it doesn't matter how big or small the company is, nor whether your employment is temporary or permanent. However, you do have to be an employee so the self employed, for example, do not have the right to statutory maternity leave.
How long do you get?
52 weeks leave which is divided into:
- Ordinary Maternity Leave (OML) - the first 26 weeks
- Additional Maternity Leave (AML) - the next 26 weeks
It used to be the case that you were only entitled to the full 52 weeks if you had worked for your employer for a certain time, but this is no longer true. You will be entitled to 52 weeks unless there is something unusual about your situation (such as that you normally work abroad) or you are a police officer or serve in the armed forces.
The reason that maternity leave is still divided into two separate periods is that the extent of your right to return to your old job depends upon how much leave you take. Broadly speaking, if you go back during the first 26 weeks you have the right to return to your old job. Whereas if you go back during the following 26 weeks, you have the right to return to your job unless it is not reasonably practicable for your employer to give it back to you, in which case they need to give you a job on equivalent terms and conditions. For details see Right to return.
What do you have to do to take maternity leave?
If you want to take maternity leave you have to tell your employer the following:
- That you are pregnant
- The week that you expect your baby to be born
- The date on which you intend to start maternity leave
This doesn't have to be in writing (although that is a good idea), but if your employer asks you for proof that you are pregnant then you have to provide it.
The notice has to be given at least 15 weeks before your baby is due, unless there is a very good reason why you are not able to. A very good reason would be something like not having known that you were pregnant, or having been seriously ill.
When can you start maternity leave?
Any time from 11 weeks before the week that your baby is due. If you have told your boss that you want to start on a particular date you can change your mind, but you have to give at least 28 days notice of the change.
What happens if your baby is born early?
If your baby is born early then your ordinary maternity leave starts automatically on the day after the birth. You should inform your employer as soon as possible after the birth.
Illness in pregnancy and compulsory maternity leave
If you are off sick in the last four weeks before your baby is due for a reason relating to pregnancy then you have to tell your employer that your absence is pregnancy related. If this happens then your maternity leave starts immediately from the date of your absence whether you want it to or not.
You are also obliged to take two weeks' compulsory maternity leave after the birth of your baby. This will count as part of your ordinary maternity leave if you choose to take more than two weeks.
Pregnancy loss and stillbirth
If you suffer the loss of your baby when you have been pregnant for 24 weeks or more, or if your baby is stillborn, then you are still entitled to maternity leave. Your leave starts immediately and you should tell your employer as soon as possible.
If you are having a child through surrogacy you will not, as things stand at the moment, have the right to maternity leave but you may be entitled to unpaid parental leave. However, those who become parents through surrogacy are likely to have equal rights to leave in the future as the result of developments in Europe and new proposals by the government expected to be in place by 2015.
Sadly, no matter how many babies you are coping with, the period of leave remains the same.
'Transferable' maternity leave
If you do not use up all of your maternity leave, your partner will be able to take 'additional paternity leave' and may be entitled to Additional Statutory Paternity Pay (if you go back to work prior to using up your SMP or SMA). This can be a way of ensuring you both get some time with the baby (and that your careers take a roughly equal hit). For more information, have a look at our factsheet on Paternity Leave.Natasha Joffe and Lydia Seymour. Please have a look at our disclaimer and bear in mind that the information provided is no substitute for specific advice on your individual case.