Managing Maternity – Frequently asked Questions

Written by Andrew Johnson, Founder and CEO HRGuide - Thu 24th Oct 2024

In order to help you manage your employees maternity leave and pay we have detailed below common maternity leave questions and queries employer’s have and the detailed answers.
  

Q. How do I manage disputes about statutory maternity pay or if I can’t pay it?

A. Call the HMRC helpline - You can call the HM Revenue and Customs (HMRC) helpline if:
  • you and someone else disagree about how much statutory maternity pay they should get, or for how long.
  • you cannot pay it, for example because you're insolvent.

Q. What rights do agency workers have?

A. Find out more about employment rights for agency workers with our agency worker guides.

Q. When is a pregnant employee protected from discrimination?

A. By law, an employee is protected against discrimination from the start of their pregnancy until they either:
  • end maternity leave.
  • return to work.
  • leave their job.
The employee is protected against discrimination resulting from:
  • their pregnancy
  • illness related to their pregnancy, including related absence they take or plan to take.
  • maternity pay they take or plan to take.
  • the employer not wanting them to return to work because they’re breastfeeding.

Q. What do I do if the pregnant employee is ill or having a difficult pregnancy?

A. If an employee cannot come to work because of a pregnancy-related illness, they should:
  • report in sick in the usual way.
  • get their usual sick pay.
Pregnancy-related illness can include:
  • morning sickness (nausea and vomiting)
  • tiredness
  • headache
  • backache
  • bleeding
If you're not sure whether an illness is pregnancy-related, you can ask your employee to provide a fit note from a registered healthcare professional.

BEST PRACTICE

It's a good idea to:
  • take the employee's wellbeing seriously, particularly if there are any known health and safety risks – you could also be breaking discrimination law if you do not allow them the time off.
  • be as flexible as you can about the amount of sick leave they take – pregnancy-related illnesses affect people differently.

Q. What records should I keep in relation to pregnancy-related absence?

A. You should record pregnancy-related absence separately from other sickness absence. You should not count these absences towards any review or trigger points in your absence policy.

If the employee is off work because of a pregnancy-related illness within 4 weeks of the due date, maternity leave begins automatically. This is unless you and the employee agree together to delay it (for example, for health and safety reasons). Once maternity leave starts, you must pay them maternity pay instead of sick pay.

Q. What do I do if my employee is having a difficult pregnancy?

A. It's a good idea to be understanding towards an employee who's having physical or mental health difficulties when pregnant.
  • For example, consider offering:
  • different work start and finish times.
  • working from home and extra breaks
  • an occupational health assessment, for example to look at whether a chair can be adjusted for someone with back pain.
  • If they need long-term changes to how they work, flexible working might be a good idea.

Q. What pregnancy-related appointments should I accommodate?

A. Pregnant employees are entitled to time off with full pay for 'antenatal' (pregnancy-related) appointments. 

Antenatal appointments include:
  • medical appointments related to a pregnancy.
  • classes for pregnancy-related health, fitness or relaxation
  • sessions that support the person's mental health and wellbeing
  • Paid time off for antenatal appointments includes travel time.

Q. How much notice should an employee give me for time off work?

A. The law does not say how much time can be taken off, only that it must be a 'reasonable' amount.

Usually, a pregnant employee needs:
  • up to 10 antenatal appointments if it's their first baby
  • around 7 antenatal appointments if they've had a baby before
As every pregnancy is different, it's a good idea to be flexible and understanding if an employee needs more appointments. After the first appointment, they must provide an appointment card or other evidence of their appointments if you ask for it.

Q. What if the employee is adopting?

A. By law the main adopter is entitled to paid time off for up to 5 adoption appointments, the secondary adopter is entitled to take unpaid time off for up to 2 appointments
Some employment contracts may allow for more, or paid, time off for these appointments.

Find out more about rights for employees using adoption here.

Q. What if the employee is using surrogacy?

A. Unless your contract says otherwise, an employee can take unpaid time off for 2 antenatal appointments if they're using surrogacy and will become the child's legal parent once it's born.

Q. What if my employee is having IVF treatment?

A. There's no legal right for time off work for IVF treatment or related sickness. But you should treat an employee's IVF appointments and any sickness the same as any other medical appointment or sickness. Check your employment contract if you're not sure.

It's a good idea to be open to any requests your employee has for:
  • flexible working
  • paid time off, unpaid time off or holiday.

Planning maternity leave and Maternity Leave Rights and Rules

Before maternity leave starts, you should agree with your employee the best way to keep in touch about important changes or news at work. Don’t forget your employee rights are protected during their leave with specific rules you should follow whilst they are on leave.
This includes arranging how you'll keep in touch. Try and agree a way of keeping in touch that's comfortable for your employee, for example you can ask them if they prefer email to phone calls.
By law you must tell them about:
  • promotion or other job opportunities
  • redundancies
  • any reorganisation that could affect their job
You could also tell them about:
  • social events
  • colleagues who are leaving or joining
  • arrangements for their return to work
It's a good idea to:
  • let the employee decide how much contact they want, unless the contact is about things you must tell them about 
  • remind them they do not have to do any work during maternity leave
Keeping in touch days (KIT Days)
You and the employee could have up to 10 optional keeping in touch (KIT) days during their maternity leave, if both sides agree. Keeping in touch days help employees stay in contact with their organisation, for example by joining training sessions or team meetings.
Both sides should agree the following before deciding keeping in touch days:
  • the work the employee will do on these days
  • the pay – this cannot be below the National Minimum Wage. The statutory maternity pay an employee receives does not count towards a National Minimum Wage calculation.
If an employee works part of a keeping in touch day, it still counts as a full day.
If they work more than 10 keeping in touch days, their maternity leave and pay automatically end.

If they're taking shared parental leave

As well as taking up to 10 keeping in touch days, an employee taking shared parental leave might be able to take 20 extra days for keeping in touch.
These extra days are known as shared parental leave in touch (SPLIT) days. Find out more about shared parental leave here.

What does neonatal care leave include?

Neonatal Care incorporates:
  • medical care received in a hospital;
  • medical care received in any other place where the child was an inpatient in hospital and the care is received upon that child leaving hospital; and the care is under the direction of a consultant; and the care includes ongoing monitoring by, and visits to the child from, healthcare professionals arranged by the hospital; and
  • palliative or end of life care.

Which employees are eligible for neonatal care leave?

  • The child’s parent who has or expects to have responsibility for the child’s upbringing;
  • The partner of the child’s mother who expects to have main responsibility (apart from the mother) for the child’s upbringing;
  • The child’s adopter who has or expects to have responsibility for the child’s upbringing;
  • The partner of the child’s adopter who expects to have main responsibility (apart from their partner) for the child’s upbringing;
  • The child’s overseas adopter with responsibility for the upbringing of the child;
  • The partner of the child’s overseas adopter with main responsibility (apart from their partner) for the child’s upbringing.

What leave entitlement is there for neonatal Care?

  • Eligible employees are entitled to one week's leave for every week their child spends in neonatal care, capped at a maximum of twelve weeks. The leave may be taken while the child is receiving the care or after.
  • The leave must be taken before the end of 68 weeks beginning with the date of the child’s birth.

Who qualifies for neonatal care leave pay?

Employees may be eligible for Statutory Neonatal Care Pay (SNCP) during any period of neonatal care leave if they:
  • Have been employed for at least 26 weeks before the relevant week (which is the 15th week before the week in which the baby is due);
  • Earn at least the lower earnings limit for National Insurance contributions; and
  • Provide the necessary documentation and notification to the employer. 

If they become pregnant on maternity leave

If the employee becomes pregnant while on maternity leave, they're entitled to another 52 weeks' maternity leave.
By law, the employee cannot start their next maternity leave until the 11th week before their baby is due. So if their first maternity leave ends before that point, they'll need to either:
  • return to work until at least the 11th week before the baby is due
  • see if they can stay off work by taking another type of leave (such as holiday leave) – it's up to you to decide if they can do this and they must give you the correct notice

Employing someone else to do the work

You can choose to employ someone else to do the work ('maternity cover') while the employee is on maternity leave.
The maternity cover can be an existing or new employee. Usually these roles are temporary with a fixed end date.
You must tell the person doing maternity cover what happens when their role ends. For example:
  • if they're an existing employee, whether they'll go back to their previous role or to a different one
  • if they're a new employee, whether their job will come to an end – if so you must end their contract fairly

Returning to work after maternity leave

Once your employee's maternity leave has ended, their right to return to the same job depends on how much leave they've taken.
They've taken up to 26 weeks' maternity leave
They have the right to return to the same job.
They've taken more than 26 weeks' maternity leave
They have the right to return to the same job unless you have a genuine reason to offer them an alternative.
This right applies even if someone else is doing that person's job well while they're on maternity leave.
If there's no alternative but to offer them a different job, the job must be suitable, appropriate and on the same terms. For example, it must have the same:
  • pay
  • benefits
  • holiday leave and pay
  • location
  • seniority

Returning to work sooner than planned

If an employee wants to return before taking all their maternity leave, they must tell you in writing at least 8 weeks before the date they want to return.

If they want to change how they work

An employee can make a flexible working request if they want to make significant changes to how they work, for example different working hours. Find out more about flexible working here.

Holiday leave and pay

Employees 'accrue (build up) paid holiday as normal during maternity leave.
This means they could return to work with a lot of holiday to take. So it's a good idea to agree with them how they'll take their holiday before they go on maternity leave.
Whether they'll need to carry over any holiday depends how far through the holiday year they return to work. For example, if they take 6 months' maternity leave and return to work with 6 months left of the holiday year, they might have time to take their holiday.
Find out more about holiday leave and pay here. 

Health and safety

The law says you must do a health and safety risk assessment for women of childbearing age, including pregnant women and new mothers.

Breastfeeding

By law, you must provide somewhere suitable for your employee to rest if they're breastfeeding.
It's a good idea to also provide support so they can breastfeed or express milk at work, such as a private room and a fridge to store the milk.

Redundancy

By law, you cannot make an employee redundant for taking maternity leave or requesting flexible working to care for their child.

If the employee wants to leave their job

The employee must follow the usual process for resigning, including giving notice. This process should be written in their employment contract.
It's a good idea to consider any handover that might be needed. You could use keeping in touch (KIT) days to do this.
They might need to repay some or all of their maternity pay if they took 'enhanced' maternity pay.

If the employee has a complaint

If the employee is unhappy about how their return to work has been managed, they can raise the problem with you. It's best if they raise the problem informally first. 
They can also raise the problem formally. This is known as 'raising a grievance'. Find out more about Managing Grievances here.

Get expert advice on disciplinary procedures from HRGuide

It's important to have a reliable Maternity Policy outlined in your employment handbook. This ensures everyone is aware of how an employees’ maternity is dealt with.
If our step-by-step HR How to Guide doesn’t give you the support you need simply call us on our HR Helpline for expert advice.