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2 Employment - updated version available December '16
13. What are my rights if I'm having a baby?
If you are having a baby, you are allowed to take time off to have the baby and for a period after. There are also rules on your right to go back to your job after you have had your child. You can also have time off to deal with matters to do with your children when they are young.
What leave can I get while I am pregnant?
If your employer asks, you must show a certificate confirming you are pregnant, and proof of any appointments except for your first ante-natal appointment. During your time off, you should be paid at your normal rate. If your employer refuses this time off withou good reason, or refuses to pay you for the time off, you can complain to an employment tribunal.
What leave can I have when I have my baby?
To take OML, you must tell your employer you intend to take it by the 16th week before your EWC. You also need to tell your employer the date on which you want to start your OML. Naturally, If you give birth earlier than expected, your OML will also start earlier. If possible, you should give your employer 28 days' notice of a change to the date of starting OML. Within 28 days of telling your employer of when you want to take OML, your employer must write to confirm the date on which you are expected to return to work.
If you have been with your employer for at least 26 weeks at the start of the 14th week before your EWC, you can also get additional maternity leave (AML). This starts when OML finishes, and can continue for a further 26 weeks. You don't have to give notice to your employer that you want to take AML.
There is also a period known as Compulsory Maternity Leave (CML), which is the two weeks after your child is born, during which you are not allowed to return to work. But this is normally counted as part of OML, rather than additional to it.
You will be entitled to Statutory Maternity Pay (SMP) from your employer, as long as you have been employed by them for at least 26 weeks at the end of the 15th week (known as the 'qualifying week') before the EWC. Also, you must have been earning at least enough (currently an average of £82 a week before tax) to pay national insurance contributions during the eight weeks up to and including the qualifying week.
You must give at least 28 days' notice to your employer of the date you want to start receiving SMP. (You would normally do this at the same time as you tell them about OML.)
SMP is paid for the first 26 weeks of your maternity leave at the following rates:
If you cannot get SMP, you may be able to get Maternity Allowance (MA) if you are expecting a child or have just given birth and if you have been employed or self- employed for 26 weeks in the 66 weeks before your baby is due. You must also earn on average at least £30 a week. MA can be paid for up to 26 weeks starting no earlier than the 11th week before your baby is due. The two rates of MA are:
What if I can't get maternity pay?
What happens when I go back to work?
If you return to work at the end of your OML, you can return to the same job you were doing before you started OML. You also have a right to any improvements in the terms and conditions that happened while you were on OML.
If you return to work at the end of your AML, you can return to the same job you were doing before you started your AML, as long as it is practical for you to do this. If it is not, you can go back to a job which is similar and on the same (or better) terms than your previous job. If your employer can't offer you either of these options, they may have to pay a redundancy payment.
You don't need to tell your employer if you want to return to work after OML or AML unless you want to return early. In this case you must give your employer 28 days' notice.
What if I don't want to return to work?
This leaflet is published by the Legal Services Commission (LSC). It was written in association with Ian Hunter, Head of the Employment Department, Bird & Bird, Solicitors.
The leaflets are regularly updated but the law may have changed since they were printed so the information in them may be incorrect or out of date.
Leaflet Version: January 2019
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