Employees are entitled to statutory maternity leave from the first day of work. Pregnant employees can take up to 52 weeks maternity leave, with the first 26 weeks being ‘ordinary maternity leave’ and the following 26 weeks ‘additional maternity leave’. Being eligible for statutory maternity leave does not automatically mean the worker is eligible for statutory maternity pay so, what are a pregnant employee’s rights?
Maternity Pay
To be eligible, the pregnant person must have 26 weeks continuous employment before the ‘qualifying week’. The qualifying week is 15 weeks before the baby is due and should be calculated by counting backwards from the week in which the baby’s due date falls. The person must also be classed as employed for tax purposes.
Eligible employees will be paid for 39 weeks. During the first 6 weeks, their employer must pay 90% of the worker’s average weekly earnings. During the next 33 weeks, the worker must be paid the lower of:
- £187.18 per week (increasing to £194.32 from 5 April 2026)
- 90% of their average weekly earnings.
Some employers may offer enhanced maternity pay which should be clearly set out in the employment contract or an internal policy such as the staff handbook.
If someone is not eligible for statutory maternity pay, employers must give them the SMP1 form within 7 days of determining they are not eligible.
Key Protections
Pregnancy/maternity is a protected characteristic under the UK Equality Act 2010 which provides specific protection to pregnant employees from discrimination on the grounds of their pregnancy or maternity leave. In addition, pregnant employees are also protected from detriment, unfair dismiss and unfair redundancy.
Pregnant employees receive enhanced protection from redundancy during their pregnancy and for a period of 18 months from the date the baby is born. The ‘redundancy protection period’ starts as soon as an employee tells their employer they are pregnant. During this protected period, employees must be offered a suitable alternative role, if available, before other employees. Enhanced protection also applies to adoption leave, shared parental leave and neonatal care leave, subject to certain conditions.
Someone’s right to return to the same job at the end of their maternity leave will depend on how long they have taken.
If they have taken 26 weeks’ maternity leave or less:
- they have the right to return to the same job.
If they have taken more than 26 weeks’ maternity leave, they have the right to:
- return to the same job unless the employer has a genuine reason why this is not possible. In these cases, they have the right to return to a suitable alternative role;
- if there is no other option but to offer them a different job, the job must be suitable, appropriate and on the same terms i.e., it must have the same pay, benefits, holiday entitlement, location and seniority.
Other rights – holiday
Employers must allow their employees to take their statutory holiday entitlement during the organisation’s holiday year. Where an employee cannot take all of their holiday during the year because of maternity leave, the employer must allow that employee to carry it over to the next holiday year. This is an important consideration when planning maternity leave. Often employees choose to use their accrued holiday before or after their period of maternity leave to extend the time off. Employees should, however, be aware that if they choose to take holiday before they have used the full 52 weeks maternity leave, their maternity leave will automatically end.
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