Here’s to new beginnings…

Congratulations! You’re pregnant, and more than likely wondering what steps you should be taking next at work. Well, it’s important to understand how the legal stuff works as you go through your journey to becoming a working mother.

Whilst maternity leave may be a relatively common occurrence within the workplace, it is important to initially consider whether this is something that you can benefit from or not.

Statutory maternity leave is only available to employees (which simply put mean individuals who work under a contract of employment). Employees can benefit from statutory maternity leave regardless of their length of service; whether they work full or part-time hours; or whether they are on fixed-term or permanent employment contracts. Your employer may give you a more generous entitlement to maternity leave and if this is the case, this is generally contained within the employee handbook.

If you are an agency worker or a casual worker, you won’t qualify for statutory maternity leave but you may still qualify for statutory maternity pay or maternity allowance (see link below )

Self-employed? Don’t panic, you may qualify for Maternity Allowance which is a social security benefit paid by Jobcentre Plus. For further information on this, please follow the link below:

NI17A - A guide to Maternity Benefits: Maternity Allowance

Time to tell your employer

  • By the 15th week before your Expected Week of Childbirth (“EWC”) you need to have told your employer you are pregnant. Most people share the news sooner and the bump often gives things away before this date anyway! It’s important to know that until your employer is made aware you will not be able to benefit from some things (such as paid time off for antenatal care), and so the sooner you pluck up the courage to have that conversation, the better.
  • If your employer asks, you should produce a certificate from a doctor or midwife (a MAT B1) which confirms your EWC. If you wish to claim Statutory Maternity Pay (“SMP”), this certificate needs to be handed over to your employer whether it is requested or not! Generally speaking, you have until the end of the third week of your maternity leave to hand this in, so there’s no immediate rush.

Key dates

  • It’s important to put some key dates in your diary, including the date you wish your maternity leave to start and the date it will end. You should be aware that the earliest date you can start your maternity leave is the 11th week before your EWC (unless the baby is born earlier of course).

Antenatal care

  • Whilst you are pregnant, you can take paid time off during working hours to receive antenatal care, and this is the case regardless of the hours you may work or how long you have been employed by the organisation.

Annual leave

  • If you wish (and if it’s possible), you can take all of your annual leave before you go on maternity leave. If you cannot take all of your holiday entitlement before you go, it may be that you can carry over your unused holiday to the next holiday year. Furthermore, annual leave and maternity leave cannot be taken at the same time, and so if you find yourself giving birth early whilst on annual leave, that leave will stop and your maternity leave will start.

And you’re off!

Your life is now in a constant state of chaos with nappies and bottles flying around everywhere. Enjoy this time, and try not to worry about work, you can probably benefit from more than you know…

The legal bit

Can you benefit?



Ordinary maternity leave (“OML”)

Available to all employees

26 weeks’ leave

You can benefit from the terms and conditions of your employment during this time (including annual leave, private use of a company car etc.) However, this excludes the terms relating to pay (including any bonuses relating to the time that you are on maternity leave).

Additional maternity leave (“AML”)

Available to all employees


6 weeks’ leave taken immediately after your OML giving a total of 52 weeks’ maternity leave.

Same as above

Statutory maternity pay (“SMP")

Available to employees who:

  1. Have been continuously employed for at least 26 weeks by the 15th week before the EWC.
  2. Who earn at least the National Insurance Contributions lower earnings limit (please click here for more details.) 

39 weeks’ paid leave:

  • First 6 weeks = 90% of normal weekly earnings
  • Remaining 33 weeks = based on a statutory rate (from 6 April 2016 the rate is £139.58 per week)

Don’t qualify for SMP?

See the comments below concerning self-employed workers.

Ordinary adoption leave (“OAL”)

Within 7 days of being matched with a child, ensure you give notice to your employer of your intention to take OAL (if you don’t, you may not be able to take it).

6 weeks’ leave

nly one partner in the adopting couple may take adoption leave

Additional adoption leave (“AAL”)

You must have taken OAL that did not end prematurely, either because the placement of the child was disrupted, or because you were dismissed.

26 weeks’ leave taken immediately after your OAL giving a total of 52 weeks’ adoption leave.

Same as above.

Statutory adoption pay (“SAP”)

Available to employees who:

  1. Have been continuously employed for at least 26 weeks by the date of the match with the child.
  2. Who earn at least the National Insurance Contributions lower earnings limit in the 8 weeks leading up to the week in which the match is notified.

39 weeks’ paid leave:

  • First 6 weeks = 90% of normal weekly earnings
  • Remaining 33 weeks = based on a statutory rate (from 6 April 2016 the rate is £139.58 per week)

You won’t be able to claim SAP if you are receiving or have elected to receive SMP.

KIT Days

Available to all employees

KIT days enable you to return to work for up to 10 days during your maternity leave without bringing your maternity leave to an end.

Your employer may get into contact from time to time throughout your maternity leave to discuss things like your return to work, or any important developments at work. KIT days are different as you can actually go to work and be paid for this (which will normally be your contractual rate of pay).

The type of things you do on a KIT day is for you and your employer to decide, but could include a work conference or a training session, for example.

It’s worthwhile to note that your employer cannot require you to work a KIT day, but nor do you have a right to work a KIT day without your employer’s agreement.

Back to the daily grind… or is it?

Going back to work may trigger a whole host of emotions – from excitement to nervousness – and there is nothing wrong with that, you can be sure that many others are feeling the same way that you do.

Returning to work early

  • It is really up to you how much of your maternity leave you wish to take, the only requirement here is that you take at least 2 weeks maternity leave after the birth of your child and a maximum of 52 weeks.
  • If you are ready to return to work before the end of your maternity leave, you must give your employer at least 8 weeks’ notice of your return date (but it may be the case that your employer is happy for you to return on shorter notice than that). This, however, does not have to be set in stone, if you change your mind and want to return later then give your employer at least 8 weeks’ notice before the return date you previously specified.

Not quite ready to go back?

  • Whilst not a statutory entitlement, your employer may be willing to agree to extend your maternity leave. It is always advisable to get any agreement in writing so that both yourself and your employer are clear about exactly what has been agreed.
  • During your maternity leave you will accrue annual leave, and so if you would like a bit more time at home you could speak with your employer about possibly taking any unused holiday at the end of your maternity leave, which would effectively delay your return back to work.
  • You or your partner may find parental leave beneficial where, for example, emergency childcare arrangements are necessary. Parental leave is a form of unpaid leave available to birth and adoptive parents, and also to anyone who has, or expects to have, parental responsibility for a child. This applies in respect of each child, so that an employee with one child may take up to 18 weeks’ leave, and an employee with two children may take up to 36 weeks’ leave in total. Parental leave can be taken up until a child’s 18th birthday and can be flexible in terms of the time at which it is taken and the way in which the total leave entitlement may be split up into a number of shorter periods.

Back at work

  • If you decide to just take your OML, you will be benefit from being able to return to work to carry out the same job in which you were employed before you went on maternity leave, which will be on the same terms and conditions (or at least no less favourable) than they would have been had you not been absent.
  • If you took your AML as well, you are normally able to return to work to carry out the same job. If your employer has undergone some form of re-organisation since you have been away, then you are entitled to return to a job which may be different from your previous job, but which has to be both suitable and appropriate in the circumstances, and have terms and conditions which are no less favourable than they would have been had you not been on maternity leave. 

Flexible working

  • If you are struggling to juggle the demands at home and at work, flexible working may be a possible solution. If you have worked for your employer continuously for at least 26 weeks, you are able to request flexible working for any reason. Your employer should then deal with your request in a reasonable manner and notify you of their response within 3 months.
  • The types of request you may wish to make can include a change to the hours you work, the times you work, and the place in which you work (which could include your home or any of your employer’s other workplaces if this is applicable).

For more information on flexible working requests please follow the link below:


We hope that this snapshot has given you some interesting food for thought, but if you would like any further information or advice, please do not hesitate to get in touch.


Gwynneth Tan
Partner, Shoosmiths                                                 

T: 03700 86 8477
M: 07718 037 127