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Maternity Leave

By Siobhán Harding

Last week’s article focused on the maternity issues before the birth of a baby. This week’s article will look at rights to maternity leave.

All pregnant employees are entitled to 52 weeks’ maternity leave (made up of 26 weeks’ ordinary maternity leave (OML) followed immediately by 26 weeks’ additional maternity leave (AML)). A woman does not have to have worked for a set number of weeks to become entitled to AML as well as OML. AML automatically follows on from OML.

A woman can start her maternity leave at any time she wishes in or after the 11th week before the baby is due, although she can work right up to the birth without loss of maternity pay. However, maternity leave may start earlier than notified if the baby is born early, or it is triggered by pregnancy-related sickness absence.

A woman will have to notify her employer in or before the 15th week before her expected week of childbirth, or as soon as is reasonably practicable, of her pregnancy, her expected week of childbirth and the date on which she intends to start her OML. A woman can change the date on which she wants her OML to start if she gives her employer notice of the new date either 28 days before the date she had originally stated or 28 days before the new date, whichever is the sooner.

Once an employer has received notification from an employee that she wishes to take maternity leave, the employer must, within 28 days of receiving the notification, write to the employee and state the date on which she is expected to return from maternity leave. An employer who does not give this information is effectively debarred from taking action against a woman who does not return from leave on time. If an employee wants to change the date of her return to work to a date earlier or later than previously agreed, she must give her employer at least eight weeks' notice of her new intended date of return to work.

A woman's contract of employment continues in both the OML and AML periods. All of a woman's statutory rights, for example, not to be unfairly dismissed, to accrue statutory holidays and her right not to be discriminated against, continue through both OML and AML. In addition, a woman keeps her contractual rights during both OML and AML except for those in relation to pay. An employer can no longer withdraw benefits to a woman on AML if they were available to her during her OML, for example, the use of a company car.

While a woman is on maternity leave, her employer may make reasonable contact with her, and vice versa. The frequency and nature of the contact will depend on a number of factors, for example, the nature of the work and the employee’s post. Employers must keep the employee informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was working. An employee who is on maternity leave may, by agreement with her employer, do up to ten days’ work while she is on maternity leave, without bringing her maternity leave to an end. These working days are known as 'keeping in touch days'. If the employer offers an employee the opportunity to work a keeping in touch day she is entitled to turn the opportunity down without suffering any detriment as a result.

Provided they meet the qualifying conditions, most women will be entitled to Statutory Maternity Pay (SMP) during OML and part of AML. I will cover this in more detail in next week’s article.

It should be noted that for babies due on or after 3 April 2011 if a mother has returned to work without exercising her full entitlement to maternity leave then eligible employees will have the right to take up to six months paternity leave to care for a child.

Further information on the full range of maternity rights is available from your local CAB. Guidance on maternity rights can be found on if you are an employee or worker and if you are an employer.

Siobhan Harding is an Information and Policy Officer with Citizens Advice.

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