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

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Free online advice clinic 22nd July 2024 - 25th July 2024 - OPEN NOW.

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 from Monday 22nd to Thursday 25th of July. The Maternity Action team will do their best to provide all answers during that time and at the latest by Friday. 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 25th of July. 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 click here: maternityaction.org.uk/wp-content/uploads/Complaints-Policy-Final-2023.pdf

Hello,

I worked in the county council for 2 years on a temporary contract. I was informally reassured this contract would be made permanent, however, when my lovely big baby bump showed up, all of a sudden, they couldnt fund my position.
In March, this contract came to an end. I took my SMP from April 1st. My lovely Baby was born 18th May.
As I no longer work for the council I am no longer entitled to their enhanced maternity pay as per my contract. However, am meant to be able to get SMP. As I will be earning less than the minimum for taxable income, I am not due to pay tax.

HMRC: Have advised that my old work should have sent a P60 rather than a P45 as I am still being paid through them. They have me down as having 1174L as my tax code and state that I should not be paying tax this year.

County Council (my old work): have me logged as being on an OT month 1 tax code and I am being taxed 40%. They said this is through HMRC guidance. I received a letter from them (work) back in April stating they felt I was on the wrong tax code (I was on 1174L and they thought i should be on the emergency tax code), in this letter they said they would not make any changes nor would they contact HMRC. I sought advice from HMRC who said my tax code was correct, I didnt need to be on an emergency code and I was not due to pay tax this year. My work have now put me down as being on Emergency tax anyway.

I am going around in circles here… noone is helping me fix this and I am paying extortionate tax! Earning £690 (approx) a month and am just about getting by.
I dont know what to do?

Thanks so much for your response, really appreciate it!

I am currently on maternity leave, baby is 16 weeks. My job is part time and I am now receiving SMP. I have the opportunity to apply for a job which will start in the next few weeks. This would also be a part time role. Can I continue receiving SMP if I take this role? I want to return to my first job after maternity leave and intend to do both as I love job A and job B is an amazing opportunity, but if I lose my SMP I would not be able to afford to keep job B because the pay would be less than SMP (it's only one day a week). Job A is 3 days per week so SMP is pro-rata. What are my options here? I don't want to return to job A until next year when baby is older (he is fully breastfed which is fine with job B as it's a WFH role). Is there any way of having it all? We are on UC however rarely get any payments as my husband is self employed and most months we are over the threshold.
Also if my SMP does stop, do I have to return to work sooner than my planned date with job A? Or am I still entitled to take the time off, even if there is no pay for it?

Dear AskingQ

You should provide evidence of the work you have been doing e.g. any contracts or documentation you have of the work you have been engaged in. Providing evidence of income would also be helpful but DWP are principally interested in proof that you have been 'gainfully self-employed' so consider how you can evidence the work you have been involved in.

Dear lpylou

You can be made redundant during maternity or shared parental leave, providing that there is a genuine redundancy situation. This might come about if the business overall is struggling / there is a reduced business need for work which you are doing, which is entirely separate to your pregnancy or maternity leave.

If there is a redundancy situation you would have a preferential right to be offered a suitable alternative vacancy (if there is one). From April 2024 the right to be offered any other suitable roles has been extended to 18 months from your expected week of childbirth/date of birth or adoption.

In the circumstances, it would be worth having a conversation with your manager about how you would like to be communicated with about any work related matters during your maternity leave. This will ensure that if there is a redundancy situation you are informed about it in a timely way that suits you.

Dear Lilliesinbloom

Thank you for your query. Your rights to return to work following maternity leave are to return to the same job you had before you left, or, if you have been off on maternity leave for over 26 weeks and it is not reasonably practicable for the employer to allow you to return to that job, to another job which is both suitable for you and appropriate for you to do in the circumstances.

All employees have the right to make flexible working requests if they wish to change the terms and conditions on which they are employed, and can make 2 requests in any rolling 12 month period. Flexible working requests, such as a request to reduce your working hours, are governed by law and there is a specific regime that must be followed. For example, the employer must consider your request, consult with you if necessary, and deal with the application in a reasonable manner. They can only refuse the request on specific grounds, set out below, and if they do so, you must have the right to an appeal.

The prescribed reasons for refusal are:

• The burden of additional costs.
• Detrimental effect on ability to meet customer demand.
• Inability to reorganise work among existing staff.
• Inability to recruit additional staff.
• Detrimental impact on quality.
• Detrimental impact on performance.
• Insufficiency of work during the periods the employee proposes to work.
• Planned structural changes.

It does not sound like from your message that they have dealt with your request properly. As set out above, there is no requirement for them to agree to reduced hours, but if you have had conversations prior which assured you of this (even better if they are in writing), using these as part of your arguments within your flexible working request might be helpful. If they do not agree to your request and you choose not to return to work, however, simply the fact that someone suggested you should be able to get part time hours is unlikely to be enough to prevent you from having to repay the company maternity pay, depending on the rules governing that.

Whilst you are trying to arrange that do remember that you are likely to have accrued annual leave to use up and also consider the concept of parental leave – an unpaid leave but up to 18 weeks’ leave for the purpose of caring for a child to be taken at any time before the child’s 18th birthday. This might at least buy you some more time for your request to be considered.

The sale of the company likely is making the existing employer’s decision making more difficult. Depending on the time frame of this, you could wait until the transfer if you will still be on maternity leave then, and try making the request to the new employer. If working remotely has been a term of your employment and this is being changed by the new proposed employer, proper consultation will be required and it may be unreasonable for this to be changed (particularly if it could discriminate against women with childcare responsibilities for instance). This is a complex area and requires more detailed knowledge of the facts, and I would recommend that you seek further legal advice on this point. It is likely that any attempted change to your contract is relevant for your employment situation but may not affect the repayment of any company maternity pay – this depends on the terms of the pay agreement. However, that pay could form part of any negotiation that took place in relation to your future with the company if you didn’t want to return as a result of their actions.

I hope it goes well.

Dear Louisethebrit

Thank you for your query. As you have correctly identified, a new law came into force earlier this year allowing women who informed their employer that they were pregnant on or after 6 April 2024 to benefit from certain redundancy protections. As you told your employer you were pregnant in May of this year, you will benefit from this protection. This protection means that if your employer believes it is not practicable for you to continue in your existing role (by reason of redundancy), your employer must offer you a “suitable alternative vacancy” (if there is one).

A suitable alternative vacancy must be suitable and appropriate, and the terms and conditions of that new role must not be substantially less favourable than your current terms and conditions of employment. It is for your employer to determine (thinking objectively) whether or not the alternative role is a “suitable alternative vacancy”. For example, they will need to consider your personal circumstances and work experience.

If your employer determines that any role is a “suitable alternative vacancy” then you must be offered one of these vacancies outright. Your employer is not required to offer you all of those vacancies – it can choose which to offer. You should not be required to apply for the role or engage in any selection processes.

If there are a greater number of employees at risk of redundancy who are pregnant or on maternity, adoption or shared parental leave and who also benefit from this protection compared to the number of suitable alternative vacancies, your employer will need to decide who is most suitable for the vacancies they have and may need to carry out some selection processes.
If your employer determines that there are no suitable alternative vacancies, then you can still be made redundant during pregnancy, maternity or parental leave. You would be entitled to any redundancy pay and notice pay that you qualify for. Depending on the timing of a redundancy you may still be eligible for Statutory Maternity Pay from your employer (for up to 9 months) or you can claim Maternity Allowance from DWP.

In terms of next steps, it is possible that your employer is not aware of the recent legal changes to protection from redundancy for pregnant women. We suggest raising this with your employer in the first instance. If you think that one of the roles in the restructure is a suitable alternative vacancy (for example because it is very similar to your existing role but with a new job title as you indicate), it may be helpful to bring this to their attention. If you want to continue to work there in one of these alternative roles, it is best to keep the discussions amicable to maintain good working relationships. It may also be helpful to provide your employer with a link to the Acas website which provides an overview of your legal rights: Redundancy protection for pregnancy and new parents - Acas.

If your employer does not offer you a suitable alternative vacancy where one exists, and proceeds to terminate your employment for redundancy, you may have a claim for automatic unfair dismissal (where there was a role and your employer failed to offer it to you).

I hope you are able to resolve this with your employer.

I am 21 weeks pregnant but a freelancer, I am PAYE. I have been working with the same company since 2018. And solely with a specific employee within the company for the last three years. However my shifts are booked on a weekly / monthly basis & I’m scared that they will stop booking me in for work or they will reduce my shifts as soon as I make them aware as there is no contract in place.
I also do not know what I’m entitled to and really worried about maternity pay & if I will be able to receive anything during those months I’ll be away from work & if there are any benefits in place.
My payment depends on if I work, if I do not work I receive zero pay - I feel like this is such a grey area & do not know where to seek advice.
Thanks in advance!

Hi,

I have a query relating to maternity pay eligibility due to changing jobs.

I understand you need to have worked for your employer continuously for at least 26 weeks continuing into the ‘qualifying week’ - the 15th week before the expected week of childbirth.

So when this is calculated on the Government Website this appears to be 9 months less one day from the first day of the Expected week.

However, when calculated using the wording above it appears to work out as the 11th August excluding the qualifying week and the 17th August including the qualifying week creating a difference of 1-2 weeks from the government website.

For example say you have a Due Date of Tuesday 27 May 2025.
Your Expected Week of Childbirth would be Sunday 25 May 2025 to Saturday 31 May 2025.
This means your Qualifying Week would be Sunday 9 February 2025 to Saturday 15 February 2025 (Calculated as minus 15 weeks from Expected).
I then calculate the Work Start Date as Being Before Sunday 11 August 2024 excluding the qualifying week and Saturday 17 August 2024 including the qualifying week (Minus 26 weeks from Qualifying Week).
However the Work Start Date Calculated from Gov Website is Saturday 24 August 2024.

I would be very grateful if you could please review and advise which is correct.

Thank you.

Dear Wantingitall

Thank you for your query.

It is important that you check your contract with your Job A carefully to see whether there are any restrictions on taking up another job – for example whether there is a need to obtain consent from your current employer or restrictions on working for competitors.

Providing there are no contractual restrictions on your ability to take another job, the general rule is that working in another job before your baby is born will not affect your entitlement to Statutory Maternity Pay (SMP). However, working in another employed job after your baby is born may affect your continued SMP entitlement depending on the situation.

For SMP purposes, working in an employed job means working in a job for which you are paid after tax and national insurance contributions are deducted at source.

After your baby is born, you can work in another employed job providing that you were employed in that other job in the 15th week before your due date. If this is the case, any work you do in that second job will not affect your continued entitlement to SMP from your main employer.

From the information provided, it looks like you were not employed in Job B in the 15th week before your due date as this is a new opportunity for you. If this is the case and you do any work for Job B during your 39 week SMP pay period, you must tell Job A to stop paying your SMP. If you were paid your SMP entitlement in a lump sum it is your responsibility to contact your old employer and repay the SMP that you are no longer entitled to.

If you decide to start Job B during your 39 week SMP period, your SMP from Job A will stop but you will remain on maternity leave unless you give your employer 8 weeks’ notice to return to work early. Your employer should assume that you are taking the full 52 weeks of statutory maternity leave unless you have informed them otherwise.

Once your 39 week SMP period has finished, you are entitled to start a new job without it impacting your SMP entitlement. Therefore, if you are able to postpone the start date for Job B until the last 13 weeks of unpaid maternity leave (i.e. after you’ve received your full 39 weeks of SMP), you can work in Job B whilst keeping your SMP from Job A. Please note that you still need to check whether there are any contractual restrictions on your ability to take up another job.

In addition, provided there are no contractual restrictions, you can work in a self-employed job as much as you like, both before and after your baby is born, without it affecting your SMP entitlement. There is no clear definition of what self-employment means, but it will usually include getting paid without any tax and National Insurance contributions being deducted at source, and registering with HMRC to file self-assessment tax returns as a self-employed person.

For further information, please see Changing jobs or more than one job. The Government also has a more detailed guide: Maternity benefits: detailed guide – look for section 3.12.

If you are concerned about the cost of living there are a couple of options for you to consider:

Whilst on maternity leave you may work for Job A who is paying your SMP for up to 10 KIT days without your leave or pay stopping. If you later take a period of Shared Parental Leave, you can use up to 10 KIT days whilst on maternity leave and separately take up to 20 SPLIT (Shared Parental Leave in touch) days whilst on Shared Parental Leave. The entitlements are separate. As the regulations do not stipulate what an employer must pay for a KIT or SPLIT day it is important to ensure that you have a clear agreement on what you will be paid before working a KIT or SPLIT day. For more information about this please see Keeping in touch days.

If you are entitled to Shared Parental Leave and Pay, you may be able to take periods of holiday (at full normal pay) between taking periods of Shared Parental Leave and Pay. For more information on this please see Shared parental leave and pay.

You mention that you are eligible for Universal Credit. You may also be entitled to other benefits such as the Sure Start Maternity Grant which is a one off payment of £500 made to parents with a low income to help with the costs of their first baby. Please see Money for parents and babies for more information.

I hope that helps.

Dear TeddysMummy2024

I'm sorry to hear of the issues you have faced. Firstly, if you think you can evidence that your contract was not renewed because of your pregnancy or intention to take maternity leave, you may have a claim for pregnancy/maternity discrimination. However, in most cases you must start a claim through ACAS early conciliation within 3 months (less one day) from the date of the act you are complaining about. In your case this is likely to be from the date that your contract ended. A tribunal can extend the time limit where they consider it is 'just and equitable' and you would need to provide evidence that you had good reasons for any delay and that you dealt with it as soon as possible. Depending on the evidence available e.g. any emails you have about the possible extension of your contract and the date that you notified your employer of your pregnancy, you should consider taking action as soon as possible if you wish to take it further.

In relation to the taxation of your maternity pay, unfortunately you will need to take this up with your employer and HMRC. As you qualified for Statutory Maternity Pay prior to your contract ending, your employer must still pay your SMP for the full 39 weeks (9 months).

SMP is paid for the first 6 weeks at 90% of your average earnings and then at the standard rate of £184.03 per week (April 2024 - April 2025) or 90% of your average earnings if lower.

When employment has ended during the SMP period, in some cases an employer will continue to keep you on the payroll even though you are no longer an employee. In other cases an employer will pay the outstanding SMP in a lump sum when employment ends. When SMP is paid in a lump sum, it often results in the employee paying a large amount of tax and National Insurance on the lump sum but it is up to employers to decide what they wish to do. In any event you can claim a tax refund if you have paid too much tax in any one tax year. In your case it appears that your employer is continuing to pay you through the normal payroll and taxing you incorrectly. You will need to speak to HMRC about correcting this and/or how to get a tax refund.

If you don't think your employer is paying the correct amount of SMP you can contact the HMRC Statutory Payments Disputes Team on 0300 322 9422 and they will contact your employer. I suggest writing to your payroll department first (if you haven't already done so) and ask them to look at your tax code and if you think they are not paying the correct rate of SMP. I am unsure if the disputes team can help with the taxation of your SMP but, if not, they may be able to refer you to the correct section of HMRC.

I'm sorry not to be able to help more but hope that gives you a few pointers.

Dear Chick9

The information you are referring to is correct and you are entitled to have your SMP recalculated if you receive an increase in your pay at any time from the 8 week calculation period for your SMP (this is the 8 weeks prior to the 15th week before your expected week of childbirth) until the end of your maternity leave period. It doesn't just apply to pay rises during the maternity leave period.

If you were already entitled to the standard rate of SMP of £184.03 per week in the last 21 weeks of your SMP period, the increase in your pay would not make any difference but as you have mentioned that your SMP will be lower than £184.03, you will receive 90% of your average earnings and this means you should receive an increase in your SMP once a subsequent pay rise is taken into account.

I suggest writing to your HR and payroll team and setting out the HMRC guidance below and link. Ask them to recalculate your SMP for the final 21 weeks of your SMP period to take account of the pay rise. If they refuse to pay the correct SMP you can make a complaint to HMRC Statutory Payments Disputes Team on 0300 322 9422. You should let them know in advance if you intend to contact HMRC as this may prompt them to resolve it.

A pay rise must not be withheld because of maternity leave.
You must recalculate the average weekly earnings (AWE) to take account of pay rises awarded, or that would have been awarded had your employee not been on maternity leave.
This applies if the pay rise was effective from anytime between the start of the 8 week relevant period for Statutory Maternity Pay (SMP) and the end of the statutory maternity leave.
If a pay rise is awarded after you’ve calculated your employee’s earnings, and that pay rise is effective from the start date of the relevant period but before the end of the statutory maternity leave, you must:
recalculate the AWE to include the pay rise as though it was effective from the beginning of the relevant period
pay any extra SMP due

I hope that helps you to resolve it.

Dear OMHB

Thank you for your query. I am very sorry to hear you lost your job.

As you have less than two years' service you cannot claim unfair dismissal but you may have claims for automatic unfair dismissal and/or pregnancy discrimination. For both claims you will need to show that you were dismissed because of your pregnancy or intention to take maternity leave. This will include any written evidence you have about your performance and your employer's intentions and anything in writing confirming when you notified your employer of your pregnancy. In addition, you and your employer and any witnesses will be asked to give oral evidence and will be cross-examined. The tribunal will then make a decision on the evidence they have heard and, where there are facts in dispute, this may include who they consider is most credible.

Unfortunately the outcome of employment tribunal claims is always uncertain and less than 50% of discrimination claims are successful. As you say, it can depend on your witnesses' evidence (or whether they are willing to give evidence to support your claim) and how well it goes on the day.

When deciding whether you were discriminated against, a tribunal would first look to you to prove some facts from which they could infer that discrimination happened. If you can do that, the focus would then be on whether your employer can prove that your pregnancy/maternity leave had no impact on their decision making whatsoever. Or in other words, providing that you could prove some facts from which an inference of discrimination could be drawn, a tribunal would find it to be discrimination unless your employer can prove that your pregnancy or maternity leave had no impact on their decision in any way – you do not need to prove that it was the only reason for the decision.

An employer will rarely admit that a dismissal was related to your pregnancy, they will usually point to other factors such as performance concerns, financial reasons or in your case they have suggested that it was because they were selling the business. Having heard the evidence on both sides a tribunal will make a decision.

An employment tribunal will rarely order a claimant to pay costs and this will usually only apply where there are serious concerns about the way the claimant has behaved in bringing the case. A tribunal will not award costs just because a case was not successful. However, you should be aware that regardless of whether your claim is successful or not, the judgment and reasons will be available on the gov.uk website and will be searchable by future employers.

In most cases a tribunal will expect you to have taken reasonable steps to resolve the dispute before starting a claim. Where you have been dismissed during pregnancy you are entitled to written reasons. If you have not been provided with any, if your claim is successful, you can ask for an award of 2 weeks' pay for failure to provide written reasons. A tribunal may expect you to have appealed the dismissal but you may already be able to evidence that you raised it with your employer and pursued it as far as you were able to.

I would ordinarily recommend engaging with ACAS early conciliation as it can be a useful opportunity to show your former employer that you are serious about pursuing a claim and the conciliators may be able to help you reach a settlement to bring the issue to a close. However, as the certificate has been issued you have one month in which to issue a claim for automatic unfair dismissal and pregnancy discrimination. Once your employer is notified of your claim they may approach you with an offer to settle in order to avoid a lengthy tribunal claim. If they do offer to settle you should consider carefully what you would be willing to accept e.g. loss of wages until the start of your maternity leave and payment for the annual leave you would have accrued until the end of your maternity leave.

Unfortunately there are limited options for free legal advice and representation for employment tribunal claims. You may be eligible for legal aid if you are bringing a discrimination claim. This is means-tested. You can find a legal aid provider here: https://www.gov.uk/civil-legal-advice or in Scotland: https://www.mygov.scot/legal-aid
You may also be able to get help from a local Law Centre: you can find the Law Centres Network website here: https://www.lawcentres.org.uk/
You may be able to find a solicitor who can help on a ‘no win, no fee’ basis. You can find a solicitor specialising in employment and discrimination law through the Law Society: England and Wales: https://solicitors.lawsociety.org.uk/ Northern Ireland: https://www.lawsoc-ni.org/solicitors Scotland: https://www.lawscot.org.uk/find-a-solicitor/
You should also check whether you have any Legal Expenses cover included on any home or car insurance policies you hold as this may cover free legal advice and representation for employment claims.

You will not have been able to qualify for Statutory Maternity Pay unless you were employed by the same employer for the first 26 weeks of your pregnancy, however, if you were employed prior to this job, you may be able to claim Maternity Allowance (MA). You can claim MA if you were employed for at least 26 weeks in the 66 weeks before your baby is due. You can include work with more than one employer and you do not need to be currently employed to claim. The claim form is available here: https://www.gov.uk/government/publications/maternity-allowance-claim-form MA is paid for 39 weeks at £184.03 per week or 90% of your average earnings if lower. You should send payslips for 13 weeks/4 months with your highest earnings to maximise your MA.

I hope that helps and wish you all the best.

When Do I tell my employer I’m expecting baby number2 whilst on maternity leave?

I’ve been on maternity leave since November 2023 and it’s due to end mid November this year. I have accrued holiday which I plan on taking until Mid December, but I am expecting again and the baby is due February 2024.

my 12 week scan is in 2 weeks, do I tell my employer I’m pregnant this early on or will they find a way to fire me / terminate my contract?

Am I entitled to maternity leave again for another 12 months and can I dictate when this is I.e from mid December for 12 months, right after I take holiday leave. I don’t want to physically work in between maternity leaves as I had a premature baby last time and the stress of work was too much.

is there a way I can organise voluntarily redundancy leave with my employer because of the inconvenience it may cause them?

Hi, I am currently on maternity leave and have my acccrued annual leave to use when I return to work in October. In May, HR and my line manager agreed I could use some of this annual leave to take every Monday off until March, to ease me back into working full time. I booked childcare places based on this as I have no family nearby. This holiday was formally approved through the holiday tracker system. My employer is now trying to revoke this approval as they’ve now decided it doesn’t suit business needs.

are they allowed to revoke this approved annual leave when they know I cannot get a space in nursery now for Mondays until March? As what am I meant to do about childcare? This is not my fault as I followed all the correct procedures for correct approval beforehand.

thanks!

I have been holding the fort at work for the whole of July as my boss hasn’t been in (due to holidays and covid) I’m the assistant manager so it’s been left to me to managed which is fair enough as it my job and I get paid for the role but then I’ve had no staff as two people got sacked at the end June so I’ve basically been doing my boss’s job, my role plus the admin role so 3 roles. I’m extremely stressed, Working 7.30am till 5pm every day and to add to it my backs killing me, and I’m just fed up. I never ever moan about being pregnant and just get on with things, but I feel like my pregnancy needs haven’t been taken care of. I’ve never had a risk assessment or asked how I am and I have no one at work that can check on me and my health and asses how I am.

Dear Mum2be2024

Statutory Maternity Pay (“SMP”)

As you are paid through PAYE, you are an 'employed earner' for SMP purposes even though you are described as a 'freelancer'. You will be eligible for SMP if you are paid through PAYE and 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. This means you need to have started your job before the start of your pregnancy.
2. You must still be employed in the 15th week before the expected week of childbirth. You need to be employed in all or part of that week (even one day counts). You are still employed during sick leave and annual leave.
3. 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.

If you are eligible for SMP it will be paid for a maximum of 39 weeks. 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 £184.03 (April 2024 – April 2025) 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, your SMP will automatically start on the day after your first day of absence.

As you are not an employee you are not entitled to 'maternity leave' (the right to return to the same job) but you may still qualify for SMP as above. You must give your employer notice for maternity pay by the 15th week before your expected week of childbirth stating that you are pregnant and the date that you wish to stop work. 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.

If you do not qualify for SMP your employer should give you an SMP1 form. If your employer is wrongly refusing to pay SMP, you can contact HMRC Statutory Payments Disputes Team on 0300 322 9422 to ask for a formal decision. You must contact HMRC within 6 months of the payment in dispute. If HMRC decide that you are eligible for SMP they will order your employer to pay it.

Maternity Allowance (MA)

If you are not eligible for SMP (for example, if your earnings are too low), you may be entitled to Maternity Allowance (MA) instead. You will be eligible if:

1. You have been employed and/or self-employed for at least 26 weeks out of the 66 weeks before your expected week of childbirth. The 26 weeks do not have to be in a row or with the same employer. The weeks can be made up of different types of work and you do not need to be currently employed when you make your claim for MA.
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 £184.03 per week (April 24 – April 25) or 90% of your average weekly earnings if they are lower than the flat rate. You should send in payslips covering 13 weeks (or 4 months if you are paid monthly) in which you earned the most in order to maximise your MA payments.

You can claim MA on this form here: https://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.

Dear Intrigued2024

The Social Security Contributions and Benefits Act 1992, s.164 states that you will be eligible for SMP if you have been employed 'for a continuous period of at least 26 weeks ending with the week immediately preceding the 14th week before the expected week of confinement'. This is stated by HMRC as being if you 'have been continuously employed by the same employer for at least 26 weeks continuing into the qualifying week which is the 15th week before the week the baby is due': https://www.gov.uk/hmrc-internal-manuals/statutory-payments-manual/spm120200

In the example you give with a due date of Tuesday 27 May 2025.
Your Expected Week of Childbirth would be Sunday 25 May 2025 to Saturday 31 May 2025.
This means your Qualifying Week would be Sunday 9 February 2025 to Saturday 15 February 2025
You will need to have started your job before 24 August 2024 - this is 40 weeks prior to 31 May which is a full term pregnancy.

The dates provided by the gov.uk calculator are correct and are the same as the SMP date charts available online here: https://www.gov.uk/government/publications/statutory-maternity-pay-table-of-dates-for-employee-entitlement although I appreciate this is 25 weeks by the 15th February when calculating manually. HMRC Statutory Payments Disputes Team may be able to help verify your dates: 0300 322 9422.

Please note that SMP will be calculated based on the due date on the MATB1 maternity certificate so these dates may change if the date on the MATB1 is different.

I hope that helps.

Dear Noughtiesandcrosses

Thank you for your query. Employers are legally required to ensure that employees on maternity leave are not disadvantaged in terms of promotion and career advancement opportunities. If you are treated unfavourably because of your absence on maternity leave this could be maternity discrimination. You remain employed during maternity leave and your employer has the same implied duty of trust and confidence. Employees on maternity leave should not be left out of communications regarding significant workplace changes or opportunities, including promotions.

You had a clear agreement with your line manager to be notified of any senior vacancies. I would suggest contacting your line manager initially to let them know you have become aware of the roles and ask why you have not been notified. It is important to raise it informally first in case there has been unexpected leave or another reason that you have not been made aware of. Unfortunately it can often be the case that employees on maternity leave are forgotten about and depending on the reasons given and whether you receive an adequate apology you can then decide whether you wish to take it further.

If you are close to or past the deadline for applying, it would be reasonable to ask for additional time or to be able to submit a late application in the circumstances.

Before taking formal action, and depending on the explanation you are given, it may be helpful to have an informal discussion with your line manager and/or your HR department to talk about what happened and what they will do to ensure that employees are not disadvantaged. If you want to take it further you can raise a formal grievance. I suggest only raising a grievance as a last resort. This will often be treated as a complaint, going over things that have gone wrong, rather than focusing on solutions. It is important therefore to keep it as constructive as possible and be clear about the outcomes you would like to see. You will need to pursue a grievance if you are thinking of making a claim in an employment tribunal as you are expected to take all reasonable steps to resolve the dispute and your compensation can be reduced if you have not done so. I recommend that you document all communications and attempts to resolve the issues, as this will be crucial if you do end up needing to escalate the matter.

If you want to pursue a maternity discrimination claim you will need to go through ACAS Early Conciliation. You can complete an online form here to start early conciliation: Early conciliation or telephone the ACAS helpline: 0300 123 11 00. There is a strict time limit for starting a claim in an Employment Tribunal of three months (less one day). Time usually starts running from the date of the act or last in a series of acts you are complaining about. In your case this is likely to be from the date the roles were advertised so your time limit may already be running. An ACAS conciliator may be able to help you reach an agreement with your employer.

Please bear in mind that the outcome of tribunal claims is always uncertain and it can have an impact on your employment relationship. It is important to consider what outcome you want to achieve if your goal is to secure promotion to a senior role.

I hope this all works out well for you, wishing you all the best.

Dear Floristdreamer

I am sorry to hear that you are experiencing a stressful situation at work.
You have asked for some advice regarding whether and when to tell your employer you are pregnant (being in the relatively early stages of a pregnancy which you describe as high risk), in the context of a recent announcement of a redundancy process at your workplace. I will set out below some of the legal protections women have once they have told their employer they are pregnant (including in relation to redundancy). You can then take this into consideration when making your decision about if and when to tell your employer you are pregnant.

Legally, the latest you need to tell your employer that you are pregnant is 15 weeks before the week your baby is due (known as the ‘expected week of childbirth’). Some women, very understandably, have personal reasons why they would like to wait until they have at least e.g. had their first scan (often around 12 weeks into the pregnancy) and / or have an obvious bump.
There are, however, some benefits to telling your employer sooner rather than later of your pregnancy. This is because once your employer knows you are pregnant, you have certain legal protections. For example, once they know of your pregnancy:

(a) they must carry out a risk assessment to make sure your workplace is safe for you. If it is not, they’ll need to make adjustments (e.g. to your duties/hours/environment, as needed), or provide you with alternative work for the same pay. If you are experiencing physical symptoms during your pregnancy, such as sickness, you may feel that you need this kind of support / legal protection, asap.

(b) they must allow you to take paid time off for antenatal care (which includes attending antenatal appointments and any classes recommended by a doctor or midwife). I note that your pregnancy is ‘high-risk’ and therefore this might translate into you needing more regular appointments to monitor your pregnancy – so perhaps this legal protection may be of particular importance to you?

(c) (especially relevant to the situation you have described) you have legal protection from pregnancy-related discrimination or dismissal. This essentially means that, once they know of your pregnancy, it is against the law for your employer to treat you unfairly or terminate your employment just because of your pregnancy or a reason relating to it. I will expand on point (c) below, with specific reference to a redundancy situation at work.
If there is a genuine redundancy situation at your workplace (e.g. the need for people carrying out a particular type of work has reduced or ceased altogether), your employer must follow a fair process before terminating anyone’s employment by reason of redundancy. A fair process includes e.g. your employer scoring employees against a set of fair selection criteria (these tend to be criteria which are clear and measurable (e.g. by reference to HR records) such as criteria focussing on the skills and qualifications required for the remaining roles). Clearly, ‘being pregnant’ cannot be used as a selection criteria i.e. your employer cannot legally select you for redundancy just because of your pregnancy, and nor can they select you for redundancy for a reason related to your pregnancy (e.g. they cannot select you just because you have taken time off work due to pregnancy-related sick leave or to attend antenatal appointments). If they terminated your employment for one of these reasons, you would have the legal right to make an automatic unfair dismissal and / or discrimination claim.

Related to the above point, please note that once you have told your employer of your pregnancy, they are required to record any pregnancy-related sickness absence you take separately, so that if e.g. ‘sickness absence / attendance’ is one of the selection criteria being used to determine which employees will be selected for redundancy, any pregnancy-related sickness absence you have taken would not legally be allowed to be included in the calculation of your score for this criteria.

If there is a genuine redundancy situation, fair selection criteria have been used, and you have been scored fairly against those criteria (i.e. nothing relating to your pregnancy is used to negatively affect your scorings), it is possible that you might be one of the people provisionally selected for redundancy (sometimes known as being put ‘at risk’). However, provided your pregnancy is known to your employer, you would then have some special protection in relation to ‘suitable alternative vacancies’.

Employers must consider if there are any suitable alternative roles in the business (or within other businesses within the same group) that can be offered to someone ‘at risk’ of being made redundant. Employees put at risk of being made redundant who are known by the employer to be pregnant (as well as those on maternity leave or who have recently returned from maternity leave) must be offered any suitable alternative employment that is available, before it is offered to others, and without the need to apply for or be interviewed for it. This right is set out in the Employment Rights Act 1996 (section 49D). If your employer did not comply with this requirement to prioritise you (as a pregnant employee) for any suitable alternative roles (over others who do not have this special protection), you might have a claim for automatic unfair dismissal.
Note that whether any alternative role available in the business would be classed as ‘suitable’ for you would depend on factors such as how similar the alternative role is to your current one in terms of e.g. pay; duties; status; hours; location; skills required; etc. – plus factors personal to your circumstances such as the length of your commute, any health conditions you have, and any caring responsibilities you have or will soon have, etc.

Please do take a little time to reflect on the legal rights you will have access to once your employer is informed of your pregnancy, weighing this up against your (very understandable) personal feelings about wanting to keep the pregnancy private a while longer.

If you do decide to tell your employer that you are pregnant at some point during the redundancy process, although technically this can be done verbally (e.g. to your line manager) I would recommend you follow this up with written confirmation of your conversation, so you have a record of the time and date your employer became aware of your pregnancy (and therefore when your legal rights mentioned above, kicked in). You could also ask them to limit the knowledge of your pregnancy to a ‘need to know’ situation i.e. telling your line manager does not give them a general right to announce your pregnancy widely across the whole business. They may however need to notify e.g. your company’s HR team (if there is one), so they can advise your line manager and / or the person responsible for running the redundancy process about the legal protections that you have, and how to ensure they adhere to those.

If, at any point in the process, you think you are being unfairly treated and/or have been unfairly selected for redundancy based on your pregnancy, I would recommend you seek further legal advice if possible. Maternity Action’s website also provides a useful overview of your legal rights in relation to redundancy, if you are pregnant: https://maternityaction.org.uk/advice/redundancy-during-pregnancy-and-maternity-leave/
Best wishes to you, and I hope it goes well.

Dear ByRedTrayBake

Thank you for query and congratulations on your new pregnancy. You are entitled to a new period of maternity leave and any maternity pay that you qualify for.

You need to give notice for your next period of maternity leave by the 15th week before your baby is due (or as soon as possible if you miss the deadline). If you are concerned about your employer's reaction and as you are currently on maternity leave there does not appear to be any reason why you would need to notify your employer of your new pregnancy before then. If your baby is due in the week of 16 - 22 February 2025, the 15th week before is the week of 3 - 9 November 2024.

The earliest you can start your next maternity leave is 11 weeks before your expected week of childbirth. If your baby is due in the week of 16 - 22 February 2025, the earliest you can start your maternity leave is 1 December 2024. It is up to you to choose when you want to start your next maternity leave and you can go straight into a new period of leave after your current maternity leave and annual leave. If there is a small gap before your next maternity leave starts you should check whether you have any other annual leave to take or you could give notice to take unpaid parental leave: https://www.acas.org.uk/parental-leave

In order to qualify for Statutory Maternity Pay for your next baby you will need to have average weekly earnings of at least £123 per week in the 8 weeks or 2 months prior to 9 November. If you are paid at the end of each month, this is likely to be based on your earnings in September and October 2024. If you will be on unpaid maternity leave during this period you will not be able to meet the earnings threshold to get SMP for your next baby but you can claim Maternity Allowance from DWP instead.

You will be eligible for Maternity Allowance (MA) if:

1. You have been employed for at least 26 weeks out of the 66 weeks before your expected week of childbirth. You have met this condition as you remain employed during your maternity leave.
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. Your maternity pay counts as earnings.

MA is paid for up to 39 weeks. It is paid at a flat rate of £184.03 per week (April 24 – April 25) or 90% of your average weekly earnings if they are lower than the flat rate. You should send in payslips covering 13 weeks (or 4 months if you are paid monthly) in which you earned the most in order to maximise your MA payments.

You can claim MA on this form here: https://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.

Please note if you are claiming Universal Credit any MA is deducted pound for pound. If this is the case you may want to consider ending your current maternity leave earlier in order to be back at work for September/October or to take your paid holiday in this period, in order to be able to qualify for SMP. SMP is partially disregarded in Universal Credit.

I hope that helps and wish you all the best.

Hello! I have a question about my right when returning to work.

I work in a charity as a bank staff. Before I went on mat leave, I was paid £20 per hour, with each client facing session being 3 hours, i.e. £60, and any additional tasks charged at the hourly rate. I was always told that they would have as many hours as I can give.

I went on mat leave for 35 weeks. When I returned, my manager said I was then only one in the team charging a sessional rate, and offered me a day rate of £200. I asked if it would make things easier for the organisation, and my manager said yes. I quickly said yes to the day rate, thinking that it would include 3 sessions plus any additional admin tasks based on the amount of money they offered. After I said yes to the day rate, my manager then told me they'd expect me to offer 4 sessions a day and the rate is inclusive of any additional tasks I am asked to complete in the day. I hadn't had a chance to do the calculation in my head in the meeting so I didn't challenge it, which I regret.

2 months later, it became apparent that I'm being paid less to do much more work comparing to before I went on mat leave. I would have made £240 doing 4 sessions day plus some extra for doing additional tasks using my old payment agreement, but now I am getting £200 for 4 sessions + the additional tasks.

When I approached my manager about this, they said that they will check with HR, but raised concern about fairness towards the other bank staff, who are all getting paid on a the same day rate. It was also suggested that if my rate was higher, the organisation may offer less hours to me.

I was never given a 'contract', but have an offer letter from when I joined the charity stated that my hourly rate is £20, and an email from my then manager that each session would be worth 3 hours. I was on that payment terms for years before I went on mat leave. I was not offered another contract since we moved from hourly rate to day rate since I returned to work.

My questions are:

1. Is the organisation in breach of the Equality Act for moving me from an hourly rate to a day rate that means they are paying me less to do the same amount of work? (esp. after I said yes to this in my initial meeting with my manager after I return to work)
2. Is it lawful for the organisation to limit the hours I can work for them because I asked to return to my pay rate from before mat leave?
3. Do I have any basis to continue to negotiate with the organisation here? If so, what steps would you advise that I take? I want either to remain on the day rate and only do 3 sessions, or to return to my hourly rate.

Many thanks!

Dear return2work

Thank you for your query. I am sorry to hear that you are not finding your employer to be supportive or sympathetic at this time.

In order to carry out a fair redundancy process, there are three broad requirements for an employer:

Employees are warned about the redundancy and are consulted with about the proposed redundancy; and
Your employer adopts a fair basis on which to select for redundancy (i.e. they identify an appropriate pool from which to select potentially redundant employees, and select against proper and objective criteria);
Your employer searches for and, if it is available, offers you suitable alternative employment.

Based on your post, it sounds as if you have concerns about all three areas.

From the numbers of impacted roles referred to in your post, I have assumed that this is not a collective redundancy exercise (i.e. one where it is proposed to make 20 or more people redundant). If collective consultation rules apply, there needs to be collective consultation between your employer and a trade union or elected employee representatives about the proposed redundancies. If that is in fact the case, I would recommend making contact with your trade union or employee representative to raise concerns in the first instance. Even if the collective consultation rules do not apply here, there is still a requirement to warn you and consult with you individually about the proposals. The consultation process is your opportunity to raise any concerns you have about the process (for example, if you feel you have not been properly consulted because of being on maternity leave, or if you have concerns about the proposed selection process).

I would suggest requesting a consultation meeting with your employer to raise your concerns about the process now and before the interview takes place. Based on your post, I understand that you have the following concerns:

You have not been included within the consultation process. As an employee on maternity leave, you should have received all the same information as other employees, as well as being actively involved in the consultation process.
Your maternity cover has been included within the pool. If your maternity cover is someone who was brought in specifically to cover your absence, they should not be included within the pool of candidates in a redundancy situation relating to that role. However, there may be other reasons why it would be appropriate for them to be included (if for example they had been seconded from a similar role which was also being pooled with yours). Your employer should be able to explain how they have formed the selection pool and why.
The nature of the competitive interview process. As I understand it, your employer has decided to reduce the number of roles from four to two. Typically with a pool of employees, employers will use a selection exercise to score employees against objective criteria to determine which employees will remain in the two roles. It could be potentially unfair to use a subjective interview process for that selection, unless it is a situation where your employer has essentially created two new roles. It would be good to understand (i) why this approach has been adopted instead of a scoring-based selection exercise; (ii) what format the interview will follow and (iii) how the interview will be assessed.
Potentially being at a disadvantage in the interview process due to your time on maternity leave, and the time out of your substantive role due to your previous pregnancy and maternity leave. I would ask your employer how they will ensure that you are not disadvantaged in this process. Your employer would be expected to make allowances in respect of the period over which they are assessing your performance if this has been impacted by time on maternity leave. You should also tell them that you need adequate time to prepare and discuss what time is needed. Whilst it would unlikely be reasonable for you to expect your employer to wait until September for the interview to take place (as they will no doubt need to conclude the process sooner as it impacts upon other employees), there should be some flexibility to ensure you can prepare/make appropriate childcare arrangements.

By raising your concerns now, that will increase the likelihood of you being able to properly participate in the process. I would also recommend your concerns are put in writing; not only does this give you a clear record of these being raised, it also ensures that nothing is missed.

Should you remain at risk of redundancy, you have additional protection whilst you are on maternity leave and for 18 months from the expected week of childbirth (this will typically mean approximately six months after your return to work if you take your full maternity leave). During this protected period, you are entitled to be offered a suitable alternative vacancy if one is available. Suitability will generally be determined based on the similarity of the work and the applicable terms and conditions for the role. This protection gives you a right of priority to be placed in a suitable role over other candidates who do not have this protection. If your employer fails to comply with this requirement, you would have a claim for automatically unfair dismissal. I would note that, if your employer has created new vacancies/roles as part of this process (and that is the reason for the interview process), this right of priority would apply for you to be appointed to one of those vacancies ( assuming they are suitable) without the need for the interview process. However, if your employer is simply reducing four roles to two of the same roles, existing case law is unclear as to whether you can argue that you are entitled to be offered one as a matter of priority or whether this only applies to new vacancies/roles. You have mentioned that there are other roles that you consider suitable and I suggest raising this with your employer and providing them with information on your rights: https://www.acas.org.uk/redundancy-protection-for-pregnancy-and-new-parents

If you are not successful in securing a role and are made redundant, you may have the right to appeal against this decision. Your employer will confirm if this is the case.

If you believe you have been unfairly dismissed (including not being offered a suitable alternative vacancy) or you have been unlawfully discriminated against because of your maternity leave, it would ultimately be open to you to bring a claim to the employment tribunal. I would flag that there is a three-month time limit for starting employment tribunal claims. This runs from the date of your dismissal/date of the discriminatory act. The first stage in the process is to contact ACAS to start the early conciliation process. You can complete an online form here to start early conciliation: Early conciliation or telephone the ACAS helpline: 0300 123 11 00.

I wish you all the best.

Dear Pinepineapple

Thank you for your query.

After maternity leave you have the right to return to the same job on the same terms and conditions. If you have taken more than 26 weeks' maternity leave you still have this legal right, however, your employer can offer a suitable alternative job (on not less favourable terms and conditions) if it is 'not reasonably practicable' for you to return to the same role. You have mentioned that you are 'bank staff' and it is important to check your employment status. You will need to be an employee in order to be eligible for maternity leave with the right to return as above. As bank staff often work on an 'as and when' basis i.e. you can turn work down if you wish to and your employer does not have to offer work, you may be classed as a worker. Workers do not have the right to maternity leave and the protections above on return even though you may have taken time off after childbirth (in the same way as on maternity leave) and received maternity pay. If you are a worker, once you are available to take on sessions again, your employer does not have to offer work and it may not be on the same terms and conditions (although there may be some protection under the Equality Act if you are treated unfavourably as a result of time off after childbirth, see below).

If you are not sure what your employment status is and if it is not stated in any documentation you have from your employer, you should ask them and seek further legal advice if you think you have been incorrectly labelled as a 'worker'.

The Equality Act protects both workers and employees. It is pregnancy/maternity discrimination to treat a woman unfavourably because of her pregnancy or maternity leave. If you are not entitled to maternity leave, this protected period applies for two weeks after the end of your pregnancy. It can be difficult to prove pregnancy/maternity discrimination. Employers will rarely admit that it was because of pregnancy/maternity and will usually point to other reasons such as financial or organisational reasons. It is not sufficient to say 'but for' my pregnancy or absence on maternity leave, I would not have been treated unfavourably. You need to show the reason why your employer made the decisions they did and that it was because of your pregnancy or maternity leave. In your case it may be difficult to show that the move from hourly rate to day rate was because of your maternity leave i.e. this was the reason for your employer's decision, rather than other reasons. This will depend on the circumstances and timing, for example, were all bank staff moved to the day rate while you were off work, has this been a gradual change of contractual terms that is being rolled out, were you the last staff member to be paid on the hourly rate?

You have mentioned that you do not have a written contract and this is not unusual. Your contractual terms can still be evidenced by anything else you have in writing including your offer letter and other emails. It can also be evidenced by 'custom and practice'. As such there is no doubt that you have been disadvantaged by the move from hourly rate to daily rate and I would encourage you to continue to negotiate with your employer. There may be scope for arguing that you have been disadvantaged as a result of your maternity leave but there are a number of difficulties with this as set out above. Nevertheless, your employer may be willing to consider looking at this again if you have a discussion with them about the reduction in pay and increase in your workload. If there are other staff members affected it may be helpful to ask for a meeting with HR and a senior manager. If your goal is to stay in work and try to resolve it, I suggest keeping it amicable and constructive wherever possible.

I wish you all the best.