Maternity and paternity rights: A guide for employers

When a member of staff is pregnant, or has a partner who is pregnant, it’s important that their rights are protected. 

Not adhering to your responsibilities as an employer could lead to claims of unlawful maternity discrimination being raised against you, so it’s a good idea to get to grips with what is expected from both parties to avoid potentially costly litigation further down the line.

The team here at DRN have compiled a comprehensive guide, including FAQs, to help you with getting the maternity/paternity process right. 

When is an employee required to make me aware of her pregnancy? 

You should be made aware of an employee’s pregnancy at least 15 weeks before the due date. It is not required by law that the employee provide any evidence in writing, however you may wish to request a written confirmation of the pregnancy, which can be supplied as a MAT B1 form signed by a doctor or midwife. 

An employee who is planning on adopting a child should provide you with written notice in the form of a SC4 document, no later than seven days after they have been matched with a child, or at least 28 days before they intend to take their adoption leave. 

Do I need to complete a risk assessment of the workplace for a pregnant employee? 

As an employer, you have a duty of care to all employees in the workplace. As such, you are required to complete a full workplace risk assessment in the event that a member of staff falls pregnant. This risk assessment should examine any potential risks that may be posted to a new or expectant mother. 

If the assessment identifies any risks, you will be required by law to either make changes to your employee’s working conditions or adjust their working hours in order to mitigate the risk. If such changes are not possible, you will need to consider suitable alternative work for your employee. 

Is my employee entitled to paid time off for ante-natal appointments? 

Any employee who is pregnant has a statutory right to paid time off to attend ante-natal appointments during working hours, and this includes travel time to and from the appointment. 

Fathers and partners of expectant mothers also have the right to take time off to attend ante-natal appointments, but there is no expectation for their time off to be paid, and the allowance need only be made for two appointments, capped at 6.5 hours each. The same is true for surrogacy parents.  

If your employee is adopting, they are entitled to paid time off to attend up to five adoption appointments once they have been matched with a child. 

How much time can an employee take for maternity or paternity leave? 

An expectant mother under your employ will be entitled to take up to 52 weeks of paid maternity leave, regardless of their length of service in your company. Whilst they may not wish to take the full 52 weeks, it is required by law that the mother must take at least two weeks of maternity leave after the baby is born, or four if working in a factory. 

Your employee will still have a right to paid maternity leave if their baby is born early, or in the unfortunate event that the child is stillborn from 24 weeks of pregnancy, or if the child passes after being born. 

The father of the baby will be entitled to Statutory Paternity Leave, which amounts to two consecutive weeks of paid parental leave after the baby has been born. This right is also extended to those who are in an established relationship with the expectant mother, and those who are adopting or having a baby through surrogacy. 

Do I still need to make pension contributions for an employee on maternity or paternity leave? 

In short, yes - you will be required to continue to make full pension contributions for an employee during their period of paid leave. You cannot make any changes to the pension contribution which may reflect that the employee is being paid less than normal, however the employee will be entitled to reduce their own contribution into their pension scheme if they choose to. 

Can an employee choose to return to work before their maternity leave has ended? 

An employee may change their mind and decide they would like to return to work sooner than the date you have agreed, but as the employer you can request at least eight weeks of notice in such instances. 

Is an employee entitled to flexible working after returning from leave? 

Yes - an employee returning from maternity or paternity leave has the right to return to the same or a similar job, and can also request flexible working, as long as this is provided in writing and in good time before their scheduled return date. 

Accommodating flexible working arrangements might include adjusting hours or shift patterns, so that your employee works the same number of hours but over a shorter period, a reduction to part-time working hours, flexi-time, a switch to shift-working, or a move to remote working. 

An employee’s request for flexible working needs to be considered seriously, however you are not required by law to grant the request. A refusal may be made if there are genuine reasons, such as if an employee’s flexible working arrangements would have a negative impact on your business or other members of staff. Whatever your reasons, you will need to outline them thoroughly for your employee in writing. 

Can an employee resign whilst on maternity, paternity or adoption leave? 

Yes, an employee may resign from their position whilst on maternity, paternity or adoption leave. They must provide their normal contractual notice, and this may be done so that their contract of employment ends at the same time that their leave is due to end. 

Starting maternity or paternity leave 

For mothers: 

The earliest an employee can choose to start their maternity leave is 11 weeks before the week of the due date. If your employee would like to change the start date of their maternity leave, they are required to provide at least 28 days’ notice. 

For fathers and partners: 

Leave will begin upon the birth of the baby, and cannot begin prior to the birth. However, should a father or partner wish to delay the start of their leave until a number of days after the birth of the child, they are entitled to do so, as long as this has been agreed with the employer. 

For adoptive parents: 

As with those who are expecting a baby, couples who are adopting have a right to paid leave. The date their adoption leave can start will be dependent on whether they have a child through a surrogacy arrangement, or if they have adopted from the UK or overseas. 

For adoptions taking place within the UK, an employee can begin their adoption leave up to 14 days before the date the child starts living with them, on the actual date of adoption, or an agreed number of days after the child has moved in. 

The same applies for those who are adopting a child from overseas, however the law outlines that adoption leave must be taken within 56 days of the child’s placement in the new home, or their arrival in the UK). 

It’s important to note that adoption leave is only available to one parent, but the other parent can choose to take paternity leave. 

Maternity and paternity leave and pay entitlements

For mothers: 

To qualify for statutory maternity pay (39 weeks), an employee must earn at least £118 per week and provide you with the correct notice, as well as a written letter or maternity certificate signed by a doctor or midwife which proves their pregnancy. The employee must also have been continuously employed at your company for at least 26 weeks up to and including the 15th week prior to the child’s due date. 

Statutory maternity pay offers 90% of the employee’s average weekly earnings for the first six weeks of leave, after which this rate drops. For the remaining 33 weeks, the employee will be entitled to either £148.68 per week, or 90% of their average weekly earnings, whichever is lower. 

Parents who are having a child through surrogacy will not be entitled to statutory maternity pay, but they may qualify for statutory adoption leave and pay. 

For fathers and partners: 

Ordinary statutory paternity pay offers the same rate of pay as statutory maternity - 90% of an employee’s average weekly earnings, or £148.68 per week, whichever is lower.  

For adoptive parents: 

The maximum amount of leave an adoptive parent can take totals 52 weeks - 26 weeks are covered by ordinary adoption leave, and the further 26 will be covered by additional adoption leave. 

In order to be eligible for adoption leave, an employee must have been in continual employment at your company for at least 26 weeks prior to their being matched with a child. For overseas adoptions, an employee must have been working for you for 26 weeks prior to the child’s arrival in the UK, or by the date they want their leave to begin. 

An employee on adoption leave will be entitled to earn 90% of their gross weekly wage for the first six weeks of leave. After the initial six-week period, this rate then drops to £148.68 per week for the next 33 weeks of leave, or it can remain at 90% of their gross weekly wage (whichever is lower). 

Comprehensive HR & Employment Law Advice 

Maternity and paternity rights can be a tricky area of the law to navigate, particularly if it’s something you’ve not dealt with before. 

Contact our team of HR and employment law specialists today for professional support, advice and guidance on an employee’s maternity or paternity rights, and your own as an employer, to eliminate the risk of any claims arising due to misinformation, misinterpretation, or mishandled procedures.