In the latest of our series of posts on maternity and pregnancy rights, we’ll take a look at the right of (expectant) mothers to take Ordinary Maternity Leave. In the next post we’ll take a look at the remedies available to mothers who have been stopped from exercising any of their statutory rights relating to Ordinary Maternity Leave.

In this post we’ll therefore take a look at:

  • What is Ordinary Maternity Leave?;
  • Who’s entitled to take Ordinary Maternity Leave?;
  • What rights mothers are endowed with under the Ordinary Maternity Leave?;
  • How these rights can and should be exercised

What is Ordinary Maternity Leave?

Ordinary Maternity Leave is the period of leave that all employees are entitled to take if they (will) give birth and have complied with the requisite notification conditions.

Who’s entitled to take Ordinary Maternity Leave?

As above, the right is available to all employees. There is no length of service requirement for employees to obtain these rights so they’re available from day 1 for employees. However, as stated above only employees are entitled to these rights – other categories of workers are not. If you’re unsure as to your employment status you should obtain specialist employment law advice on this subject.

What rights are mothers entitled to under Ordinary Maternity Leave?

Leave

An employee has a right to take 26 weeks leave from work under Ordinary Maternity Leave.

Benefits

During Ordinary Maternity Leave an employee has a right to “the benefit of all of the terms and conditions of employment which would have applied had she not been absent”, except for remuneration. All contractual benefits (such as private use a company car, annual leave, medical insurance etc.) are therefore available to the employee during the period of Ordinary Maternity Leave. However, if the contract stipulates that the benefits are available only for business you (i.e. business use of a company car, not private) then the employee is not entitled to such a benefit whilst on Ordinary Maternity Leave.

Whether the employee is entitled to such benefits as bonuses, profit-related pay, and commission depends on whether the benefits are defined as “wages and salary”. If the benefits are defined as “wages and salary” then they would not be payable. If they are defined as “wages and salary” then they may be payable during the period of Ordinary Maternity Leave.

Maternity pay

Unlike the right to take statutory maternity leave, the right to receive statutory maternity pay is available only to employees who

  • have had at least 26 weeks’ continuous employment by the end of the Qualifying Week, which is the 15th week before the expected week of childbirth (“EWC”);
  • earns not less than the Lower Earnings Limit (LEL) for National Insurance purposes;
  • is still pregnant 11 weeks before the start of the EWC or has already given birth;
  • has given her employer at least 28 days’ notice (or as much notice as is reasonably practicable in the circumstances) of the date that she intends the period of Statutory Maternity Pay to commence from
  • supplies a MAT B1 certificate from her doctor to her employer, confirming the date of the EWC
  • has ceased work as a result of the pregnancy

How the worker’s rights in a period of Ordinary Maternity Leave can and should be exercised

Ordinary Maternity Leave period

The employee should notify her employer of the intended date for the start of her Ordinary Maternity Leave period at least 15 weeks prior to the Expected Week of Childbirth. However, she can’t go on Ordinary Maternity leave until the beginning of the 11th week before the EWC.

The employee should therefore count backwards from the last day of the EWC and determine which date is 11 weeks prior to the start of EWC and which date is 15 weeks prior to the start of the EWC. She should provide her employer with notification of the Ordinary Maternity Leave start date and proposed return date and should preferably supply the MAT B1 form to her employer 28 days prior to the start of the Ordinary Maternity Leave so she can immediately claim Statutory Maternity Pay.

Statutory Maternity Pay

The employee should inform her employer at least 28 days’ notice before she claims Statutory Maternity Pay. As the periods of Statutory Maternity Pay and Ordinary Maternity Leave tend to (but don’t necessarily have to) coincide, the employee should provide her employer with the MAT B1 form and notice of her intention to take Ordinary Maternity Leave at least 28 days prior to the date she intends to start Ordinary Maternity Leave.

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The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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