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Parental leave and the law

21 May 2020
In the UK, when an employee in a business is expecting a child, they will be eligible for a period of leave. This is known as maternity or paternity leave, and is outlined in the Employment Rights Act 1996, Paternity and Adoption Leave Regulations 2002 and the Additional Paternity Leave Regulations 2010, as well as the Northern Irish equivalents.
Take a look at some of the key points from these laws and regulations that you should know if you have employees.

Maternity leave is the parental leave that expectant mothers are entitled to. Here are some of the key points of maternity leave

Time off

Statutory Maternity Leave lasts for 52 weeks, 26 of which is called Ordinary Maternity Leave, followed by 26 weeks of Additional Maternity Leave. This is the minimum that you have to offer as an employer, but you can give longer if you wish.

Two weeks of maternity leave must be taken at least two weeks after the baby is born, or 4 weeks for factory workers. Maternity leave can only be started 11 weeks before the due date of the baby at the earliest.

Who is eligible?

To be eligible for Statutory Maternity Leave, an employee must meet the following criteria:

  • Have an employment contract in place
  • Give their employer notice


If an employee is going to take Statutory Maternity Leave, they must give a notice period of 15 weeks before the due date of the baby. The notice needs to include:

  • The week that the child is expected to be born
  • The date that Ordinary Maternity Leave is expected to start
  • A certificate from a registered medical practitioner or midwife with the expected week of birth, if requested by the employer

Employment rights

Employees on maternity leave are still entitled to the legal protection that they would have as a full-time employee.

This includes employment terms and conditions protection, holiday accrual and return to work. Employees can also take 10 return to work days, also known as keeping in touch days, without affecting their maternity leave. You should have a conversation with any employee on maternity leave in advance about their duties and pay whilst taking a keeping in touch day.

If an employee takes Ordinary Maternity Leave, they have the right to return to their role when they come back to work, but if they take Additional Maternity Leave, they can return to their job, or a similar job with the same, or better, terms and conditions of the role that they were in when they started their Maternity Leave. If the employee refuses a similar job without a suitable reason, an employer can take this as a resignation.

An employee on Maternity Leave also retains their redundancy rights, with selection for redundancy based on a fair manner, remaining the same for all employees. The employee should be offered suitable alternative employment if possible.

Outlined in the Social Security Contributions and Benefits Act 1992 and the Statutory Maternity Pay (General) Regulations 1986, and their Northern Irish equivalent, employees are entitled to 39 weeks of Statutory Maternity Pay.

The regulations outline that for the first 6 weeks of maternity leave, an employee will be paid 90% of their weekly earnings, before tax. For the remaining 33 weeks, an employee is entitled to £148.68 per week, or 90% of their average weekly wage, whichever is lower. Tax and National Insurance will continue to be deducted from this amount. You can find out how much Maternity Pay you may need to pay by using a free government tool, which can be found here.

Maternity pay eligibility

To be eligible for Statutory Maternity Pay, an employee must:

  • Have continuously worked for the employer for at least 26 weeks, up to and including the 15th week before the expected due date.
  • Earn at least £118 per week in an eight week period, including the 15th week before the due date.
  • Provide the employer with notice.
  • Provide proof of pregnancy.

Notice and proof of pregnancy

An employee must give their employer 28 days’ notice, which should be confirmed in writing by the employer with the following information:

  • Whether or not the employee can receive Statutory Maternity Pay. If not, explain why within 7 days.
  • How much pay the employee is eligible for.
  • When the Statutory Maternity Pay will begin and end.

Proof of pregnancy will need to be provided by the employee within 21 days of the Statutory Maternity Leave start date.

Ordinary Paternity Leave allows an employee to take one week or two consecutive weeks of paid leave. This can be topped up to 26 weeks, depending on if the mother has any unused maternity leave. Employers can give longer than the statutory one or two weeks if they want.

Paternity Leave eligibility

To be eligible for Paternity Leave, the employee must:

  • Be responsible for bringing up the child as the father of the child or the husband or partner to the mother.
  • Have worked for the employer for at least 26 weeks by the end of the 15th week before the due date.
  • Give the employer notice.

Paternity Leave notice

The employee must give the employer 15 weeks’ notice, which should include:

  • The expected week of birth.
  • The employees’ decision on how many weeks will be taken.
  • The date on which the employee will start their paternity leave. If the employee needs to change the date, 28 days’ notice must be given.

Additional Paternity Leave eligibility

Additional Paternity Leave can start 20 weeks after the birth of the child but must have ended by the child’s first birthday.

To be able to use Additional Paternity Leave, the child’s mother must be eligible to receive Maternity Leave, Statutory Maternity Leave or Maternity Allowance. In order for an employee to take Additional Paternity Leave, the mother of the child must be back at work and no longer receiving other benefits. The employee should also meet the criteria outlined above for Paternity Leave eligibility, as well as still being employed by the employer the week before Additional Paternity Leave starts.  

Additional Paternity Leave notice

An employee must give at least 8 weeks’ notice before the start date that they choose, and needs to include:

  • The expected week of birth.
  • The actual date of birth.
  • The dates that the employee wishes to take their Paternity Leave.

A declaration from both the employee and the child’s mother must also be submitted, outlining their plans to share leave.

Paternity Leave employment rights

Paternity Leave employment rights are the same as the employment rights for Maternity Leave, including terms and conditions protection, holiday accrual, return to work rights and redundancy rights.

Statutory Paternity Pay is outlined in the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 and the Additional Statutory Paternity Pay (General) Regulations 2020, as well as their Northern Irish equivalents.

Employees eligible for Statutory Paternity Pay can be paid a weekly amount of £148.68, or 90% of their average weekly wage, whichever is lower. Taxes and National Insurance are also paid out of this account.

Additional Paternity Pay is paid out of the partner’s Statutory Maternity Pay or Maternity Allowance, with any Additional Paternity Pay being taken by the end of the Statutory Maternity Pay or Maternity Allowance being unpaid.

Ordinary Paternity Pay eligibility

To be eligible for Paternity Pay, an employee must:

  • Be eligible for Ordinary Paternity Leave as outlined above.
  • Earn a minimum of £118 a week in an 8 week period.
  • Be employed up to the date that the child is born.
  • Provide notice to the employer. Any changes to this notice must be provided 28 days before the initial notice date was to begin.

Additional Paternity Pay eligibility

 To be eligible for Additional Paternity Pay, an employee must:

  • Meet Additional Paternity Leave criteria outlined above.
  • Earn at least £118 a week in an 8 week period.
  • Ensure that the partner has at least two weeks of maternity or adoption pay left.
  • Provide notice similar to the conditions outlined above.
Source: Zywave Inc - Employment Law: Statutory Maternity Leave and Pay
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