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2 Employment - updated version available December '16

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1. Introduction

2. Do I need a contract of employment?

3. Do I have the right to work in the UK?

4. What is the least I should be paid?

5. How many hours can my employer make me work?

6. Does my employer have to recognise my trade union?

7. What if I've been dismissed unfairly?

8. Bringing a statutory claim for unfair dismissal

9. What if I've been made redundant?

10. Bringing a contractual claim for wrongful dismissal

11. What if I've been discriminated against?

12. What are my rights if I work part-time?

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?
Pregnant employees can have paid time off to go to appointments for antenatal care. This can include relaxation classes as well as medical check-ups, as long as the appointment has been made on the advice of a doctor, midwife or health visitor.

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?
The total maternity leave you can take depends on how long you have worked for your employer by the start of the 14th week before your child is due to be born  (called EWC: expected week of childbirth).  However long you have been with your employer (and no matter how many hours you work), you can have 26 weeks' Ordinary Maternity Leave (OML). You may start OML at any time from the start of the 11th week before your child is due, but no later than the actual day of birth.

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:

  • for the first six weeks, you will get 90 per cent of your average weekly gross (before-tax) weekly earnings with no upper limit; and
  • for the remaining 20 weeks, you will get £116 a week, or 90 per cent of earnings if you normally earn less than £116 a week (though this figure is reviewed each year).

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:

  • £116 per week (the 'standard rate'); or
  • 90 per cent of your average weekly earnings if these are less than £116.

What if I can't get maternity pay?
If you cannot get SMP or MA, you may be able to claim Incapacity Benefit or Income Support and possibly a Sure Start Maternity Grant. For information about how these work, and how to apply for them, contact your local Benefits Agency office, which is listed in the phone book. Alternatively, visit the Department for Work and Pensions website -see 'Further help'.

What happens when I go back to work?
During OML and AML you are still classed as an employee. These periods will count towards your statutory rights. This means you are protected from unfair dismissal and you keep your right to a redundancy payment and to have disciplinary and grievance procedures followed. However, only OML will count towards seniority, pensionable service and other benefits based on your time with your employer (length-of-service benefits).

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?
If you decide not to return to work after OML or AML, you must give your employer the same notice that you would if you were leaving for any other reason. If you qualify for SMP, you will stay on the payroll until your entitlement ends. After that, you will receive a P45. If you are not getting SMP, your employment will finish at the end of the contractual notice period or the end of your maternity leave, whichever comes first.

14. Can I take leave as a new Father?

15. What are my rights if I'm adopting a child?

16. What other leave can I get after my child is born or adopted?

17. Can I change my working arrangements if I have children?

18. Can I take time off if I am someone's carer?

19. Further Help

20. About this leaflet

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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