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Unsure of your equality rights or the law? We can provide advice and assistance for people who feel they have been discriminated against.
 
 

Statutory and contractual pay

During maternity leave
Pregnancy at work

What you need to know

 

Statutory pay, contractual pay and applying for other jobs

What are my statutory maternity pay (SMP) entitlements?


All employees who qualify are entitled to SMP. To qualify you will need to have been employed for 26 weeks by the 15th week before the week in which your baby is due and earn a minimum amount. An employer must pay SMP to all employees who qualify. For further details see the statutory maternity pay section of NI Direct's website

You are entitled to SMP for 39 weeks. The first six weeks are paid at 90% of your salary. The remaining period is paid at a flat rate, which as at April 2021 is £151.97. The amount is increased each year.

Can my employer recover SMP from the government?

Yes. All employers can reclaim some or all of the SMP they pay. Small employers who qualify for small employer’s relief can recover 103% of the amount paid. Other employers can claim 92% of the amount paid. Some employers are not aware they can recover SMP so it is best to make sure they know.
 

Do I have to pay back my SMP if I leave work or am dismissed during maternity leave?

No. Once you have become entitled to SMP, your employer must still pay you for the full 39-week period. It would be unlawful for your employer to stop paying SMP because you were dismissed or you decide not to return to work.

For circumstances that affect payment, including where you work for another employer or get a pay rise, see the statutory maternity pay section of NI Direct's website

 

Will I have to pay back contractual maternity pay if I do not return to work or am made redundant?

If your employer pays you more than the statutory minimum maternity pay you should check your contract and ask your employer or Human Resources team what you are entitled to.

There may be a condition that you have to pay back any contractual maternity pay over and above SMP if you decide not to return to work or stay for a minimum period after coming back from maternity leave. Your employer may not be able to rely on the contract to claim repayment if they have broken the contract themselves, for example by discriminating against you.

Your contract may say you should pay it back if you are made redundant. Many employers do not enforce repayment of contractual maternity pay where the employee is made redundant, but that is a matter for negotiation.

 

I am looking for work. Can an employer refuse to appoint me because I am on maternity leave?

No, an employer must treat you the same way as any other job applicant, except that they may need to wait for you to start work until your maternity leave is over. 

When applying for work you must not be rejected because you:
 

  • are on maternity leave or
  • have just taken maternity leave, or
  • are about to go on maternity leave.



An employer must not, because of your maternity leave:

 

  • refuse to interview you or not appoint you to a job
  • give you a job for a limited period instead of permanent employment
  • insist you start work when you are on maternity leave, or
  • offer you a lower salary or other different, less favourable terms.

 

 

Can I ask to work part-time or flexibly even if a job is advertised as full-time?

Yes, you can ask to work part-time or on a different working pattern. There is no statutory right to apply for flexible working until you have been employed for 26 weeks. You can find more information from the 'flexible working' section of NI Direct's website

However, a refusal of your request may be indirect sex discrimination.  Indirect sex discrimination is where there is a provision, such as full-time working applied to men and women equally, which particularly disadvantages women compared to men, and which the employer cannot show is necessary for the business.  Your employer should consider carefully whether the job could be done in the hours or pattern requested by you.

 
 

 
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