MNHQ here: post your pregnancy & maternity work questions here for FREE legal advice from Maternity Action

[NicolaDMumsnet]

Free online advice clinic 12th June - 16th June 2023 - OPEN NOW.

Welcome to the second clinic of the year running from 12th to 16th June. We hope you're getting the chance to enjoy the sunshine!

Mumsnet and Maternity Action are once again teaming up to provide an online legal clinic, offering free advice on pregnancy, maternity and parental rights at work from volunteer employment lawyers who are members of the Employment Law Association.

Whether you have a question about maternity leave, your request for flex work, your rights as a pregnant worker, or think you may be discriminated against by your employer because of being a parent, this is the place for you.

The clinic takes the form of a Q&A on this thread and will run for a week from Monday 12th to Friday 16th of June. The Maternity Action team will do their best to provide all answers during that week and at the latest by the Tuesday of the following week. More information on where to go for more help once the clinic has ended is here. All past clinics are here.

How it works:

• If you have a question about your rights at work during pregnancy, maternity or parental leave, post it here below before the 16th June. Please give as much information as possible but remember that this is an online forum and can be viewed by the public – including your colleagues and employer. Please don’t name your employer publicly if you are likely to be taking action against them in future. You can use private message to disclose information to the volunteers that you’d rather not make public.

• Please send your name and the name of your employer by private message to MaternityActionfreeadvice so that it can be passed on to the volunteers to do a conflict of interest check. We cannot post a reply until you have sent this information by private message.

• Once your advice has been posted online, you will have an opportunity to provide feedback. This helps us to find out whether you found the advice helpful, whether it helped you to resolve your situation at work and some information about you. All survey responses are anonymous and confidential. Providing feedback will help us to see what improvements can be made in developing this type of online free legal advice clinic. Fill out the survey here.

Ts and Cs – please read
The advice provided to an individual poster is based only on the information provided by that poster. Advice on this thread is also particular to the individual who has asked for it and is likely to be specific to that person’s situation. A poster may have provided further relevant information by private message which will not appear on this thread. So please take care if you choose to apply that advice to your own situation - it is recommended that you first take legal advice from one of the sources we have suggested here.

Mumsnet, Maternity Action and Maternity Action's volunteers accept no liability for any loss suffered as a result of an individual choosing to follow advice provided to another poster's question on the thread.

The lawyers, all of whom are specialists in employment law, will be working as volunteers for Maternity Action in respect of the clinic. Any personal information collected as a result of the clinic will be held by Maternity Action and will be deleted after 18 months. If you wish to make a complaint about the service you received, you can use Maternity Action’s complaints policy here

Dear Preggolady2023

The short answer is yes, you will be entitled to SMP, provided you will have been employed for at least 26 weeks ending with the 15th week before your expected week of childbirth and provided also that your earnings are not less than the lower earnings limit (currently £123 per week) in the 8 weeks/2 months prior to the end of the 15th week before your expected week of childbirth.

You will need to give your employer notice of your pregnancy and the date you intend to start maternity leave by the 15th week before your expected week of childbirth and give them your MATB1. They will work out your entitlement to SMP. If you have not qualified they must give you form SMP1 and you can apply for Maternity Allowance. You don't need to tell your employer any earlier than the 15th week before your expected week of childbirth (although it may be obvious by then) if you want to protect your position in relation to discussions about staying on in the role.

I hope that works out well.

Dear cbear1986

Thanks for your query. Shared parental leave enables the mother to 'curtail' (cut short) her maternity leave and pay and transfer any untaken maternity leave/SMP or Maternity Allowance to her partner to take as shared parental leave and Statutory Shared Parental Pay. There is no independent right to shared parental leave and Statutory Shared Parental Pay for fathers and partners, it can only be created by the mother reducing her maternity leave and pay entitlement.

If your partner does not qualify for shared parental leave and Statutory Shared Parental Pay because he didn't have 26 weeks of service by the 15th week before your baby is due, his only rights are contractual. This means he will need to check his contract of employment or his employer's family leave policy to see if he qualifies for anything from his employer. His employer can set their own terms and conditions for any contractual rights they offer and they may be the same as the qualifying conditions for the statutory scheme for shared parental leave and Statutory Shared Parental Pay or they may be more flexible or more generous.

To answer your question as to whether his employer will require you to curtail your maternity leave and pay in order for him to be eligible for any contractual shared parental leave and pay that they offer will depend on their contract/policy. Unfortunately without being able to see his contract/policies I'm not able to advise further. Under the statutory scheme you would have to reduce your maternity leave by 16 weeks and reduce your maternity pay by 16 weeks in order to transfer it to him but as he is not entitled to the statutory leave and pay as he didn't have sufficient length of service he may be entitled to 16 weeks fully paid leave from his employer and this may not affect your maternity leave and pay. Please check the terms and conditions of his employer's scheme very carefully in order to avoid an overpayment during his leave. He may be able to get further clarification from his HR or payroll department and he may want to agree it in writing with his employer to avoid any misunderstanding.

I hope it goes well.

Dear Cakeorchocolate

If your zero hours contract states that you are an employee, you will be entitled to maternity leave with the right to return to the same job. If it states that you are a worker you are not entitled to leave and your employer does not have to keep your job open for you but you can agree a period of time off with your employer and it would be up to them whether they can provide further work when you are ready to return.

In relation to maternity pay, you can get either SMP from your employer or Maternity Allowance from DWP, if you meet the qualifying conditions, and regardless of whether you are an employee or a worker providing you are paid through PAYE with any tax/National Insurance deducted at source.

Statutory Maternity Pay (SMP)

You will be eligible for SMP if you meet all three of the following:

1. You have been employed by the same employer for at least 26 weeks by the 15th week before your expected week of childbirth. You will have met this condition as you have had a contract for over a year and you are available for work. You do not need to have worked for your employer in every week. You are still employed during sick leave and annual leave.

1. You earned at least £123 per week in the 8 weeks (if you are paid weekly) or 2 months (if you are paid monthly) immediately before the end of the 15th week before your baby is due.

You can find a maternity pay calculator online here: https://www.gov.uk/maternity-paternity-calculator

SMP is paid at 90% of average weekly earnings for the first six weeks. The next 33 weeks are paid at a flat rate of £172.48 (April 2023 – April 2024) or 90% of average weekly earnings if that is less than the flat rate. You can generally choose when your SMP will start. It can start as early as the 11th week before your baby is due and can start as late as the birth. If you are absent from work in the 4 weeks before your expected week of childbirth, because of pregnancy-related illness or a maternity suspension, your SMP will automatically start on the day after your first day of absence. If you give birth early your SMP will start the day after the birth and you should let your employer know that your maternity leave has started. If you wish to return to work earlier, you must give your employer at least 8 weeks' notice to end your maternity leave/pay early.

You must give your employer notice for maternity leave and pay by the 15th week before your expected week of childbirth stating that you are pregnant and the date that you wish to start your maternity leave. If you are late you should give notice as soon as possible. In order to be paid SMP you must give your employer your MATB1 maternity certificate which you can get from your midwife or GP. This will state your due date and will be used to calculate your SMP as above.

All employers are reimbursed for the SMP they will be paying you (including the first 6 weeks at 90% of your average earnings). Your employer can get more information about claiming back SMP and advance payments for small employers here: www.gov.uk/recover-statutory-payments If your employer is refusing to pay SMP or has calculated your SMP wrongly you can contact HMRC Statutory Payments Disputes Team on 0300 322 9422 to ask for a formal decision.

If you do not qualify for SMP your employer should give you an SMP1 form. You may be eligible for Maternity Allowance instead.

Maternity Allowance (MA)

If you are not eligible for SMP, you may be entitled to MA instead if:

1. You have been employed for at least 26 weeks out of the 66 weeks before your expected week of childbirth. You have been employed for at least a year and you can count weeks in which you have a zero hours contract even if you are not provided with work every week.
2. You earned at least £30 per week on average in any 13 weeks (or 4 months if you are paid monthly) in the 66 weeks before your expected week of childbirth. These weeks do not have to be in a row and can come from any time in your 66 week test period. It is important to send payslips with your highest earnings over the 13 week/4 month period in order to get the maximum amount of MA.

MA is paid for up to 39 weeks. It is paid at a flat rate of £172.48 per week (April 23 – April 24) or 90% of your average weekly earnings if they are lower than the flat rate. As with SMP, if you do not wish to take the full period of maternity leave/pay you can contact DWP and ask them to stop paying it and give your employer at least 8 weeks' notice to return to work early.

You can get a copy of the form from the Government’s website here: www.gov.uk/government/publications/maternity-allowance-claim-form or you can telephone the JobCentre Plus on 0800 055 6688 and ask for form MA1. You will need to send a copy of your MATB1 and your payslips with your highest earnings in support of your application. If you do not have payslips you can send other evidence such as bank statements or other proof of earnings.

Please note if you are receiving Universal Credit or certain other benefits, Maternity Allowance is deducted pound for pound so you may not be any better off and you should seek further advice about the impact on your other benefits of claiming MA.

You can work for up to 10 days during your SMP or MA period but after that your SMP/MA will end if you return to work. We have more information on maternity pay on the Maternity Action website here: Maternity pay questions.

I hope that works out well.