Leave entitlements
Maternity and Adoption leave should not be confused with the similar payment entitlements. Everyone qualifies for the leave period as there is no minimum length of service, but there are certain qualification conditions that have to be met to receive payments during the leave period. Unpaid additional maternity leave is available when continuous service at the start of the 14th before the expected date of birth is 26 weeks or more.
Any reference to the expected date of birth or similar applies equally to the matching date of an adoption. Child birth and adoption are treated equally in the regulations.
If the qualifications for Paternity Pay are met then the leave qualifications are automatically met but it is not always true for the reverse. SPP can be recovered in the same manner as SMP.
Maternity, Adoption and Paternity pay qualifications
There are strict rules that determine who qualifies for SMP, SAP and SPP but, in general, any female (SMP) or person (male or female SAP & SPP) who has been continuously employed by you for 26 weeks starting 15 weeks prior to the expected birth date or adoption will qualify. Single sex couples are not excluded. SMP and SAP payments are made in two stages, the first based upon the employees wages and the second stage as a flat rate or percentage of wages. SPP is paid either as a flat rate or percentage of wages; whichever is the lower.
Every employer has to make SMP, SAP or SPP payments, or payments of an equal or greater amount, to employees that qualify. There are certain professions that have different qualifying conditions, but for a normal every day business they are as follows.
SMP and SAP
- earn the Lower Earnings Limit for NI or more and pay national insurance contributions if their earning were high enough
- have officially notified you of the expected date of the baby's birth or adoption date
- have worked a continuous period of 26 weeks ending during the 15th week prior to the expected birth or adoption date and that they will still be employed by you during that week
- still be pregnant on the 11th week prior to the week of the expected birth date (SMP only)
- still be employed by you when the baby is born or child adopted (SAP only)
- notice must be given before or during the 15th week before the expected date of birth
there are other qualifying conditions but these are the primary ones.
SPP
- have responsibility for the child's upbringing
- be the biological father of the child
- or the mother's husband or partner
- or the adopter's partner or spouse
- have worked continuously for their employer for 41 weeks before the expected birth date
An employer has the right to ask for a self-certification form to confirm their eligibility for SPP and leave. Unless known to be a false statement the certificate must be taken at face value and no checks should be made.
Maternity payments
There are two rates at which SMP is paid. For the first six weeks the rate is 90% of the employees average earnings, for the following 33 weeks the lower of £123.06 a week for 2009-10 or 90% of average wage. All payments are subject to PAYE tax and NIC and any usual deductions except for Attachment of Earnings and CSA Orders.
To find out the employees average wage use the wages for the eight weeks preceding the 15th week prior to the expected birth date. Round up the pence. The amount taken into account should be all of the earnings, i.e. include commission, bonuses etc.
Payments should not commence earlier than the 11th week prior to the expected birth unless the baby is born prematurely, in which case payments can start from the next Sunday. Payments would normally commence the week following, starting on a Sunday, the employees last day of work. Following the start of SMP payments can not be made for a week in which the employee works and is paid wages for unless it is one of the 10 KIT (Keeping In Touch) days allowed. A weeks entitlement lost in this way is deducted from the end of the lower rate 33 week period of SMP.
An employee is entitled to claim SMP whether or nor they intend to return to work after the leave. It is an offence to withhold SMP for a reason like this.
Adoption payments
SAP is paid for 39 weeks at the same rate as SMP or 90% of the employees average wages, whichever is the lower. All payments are subject to PAYE tax and NIC and any usual deductions except for Attachment of Earnings and CSA Orders.
To find out the employees average wage use the wages for the eight weeks preceding the 15th week prior to the expected adoption date. Round up the pence. The amount taken into account should be all of the earnings, i.e. include commission, bonuses etc.
Payments can be started any time after the adoption placement begins. Payments would normally commence the week following, starting on a Sunday, the employees last day of work. Following the start of SAP payments can not be made for a week in which the employee works and is paid wages for unless it is one of the 10 KIT (Keeping In Touch) days allowed.. A weeks entitlement lost in this way is deducted from the end of the SAP payment period.
An employee is entitled to claim SAP whether or nor they intend to return to work after the leave. It is an offence to withhold SAP for a reason like this.
Paternity payments
Paternity leave must be started within 8 weeks of the birth or adoption and must be taken as either a one or two week period. Two separate one week periods can't be taken. The weekly rate of SPP is the same as the higher weekly rate of SMP and payment is made in one lump sum of the lesser of the flat rate or 90% of the average wage (same calculation as used for SMP). The payment is subject to the same tax and deductions as SMP.
If the employee fails to qualify due to low pay they may be able to get a payment from the Benefits Agency.
Period of leave
Maternity & Adoption
Maternity and Adoption leave can be taken for up to 52 weeks, the first 39 are paid and the remaining 13 are unpaid. Notice of the start date of the leave must be given by the fifteenth week before the baby is expected.
28 days written notice must be given if
- the leave is going to be longer than 39 weeks
- the leave start date is changed
- the leave start date is changed
If the leave is to extend after the 39th week 28 days notice in writting must be given If the return date is anything other than the first working day after the 39th week off 28 days written notice must be given
Paternity
The leave, either one or two weeks, must be taken all in one go, an odd day here and there is not allowed. The employee can elect to take only one week but is not allowed to take the second week at a later date.
The leave can start either on the date of the child's birth or adoption or on a pre notified date or period after the birth or adoption. The period of leave must be completed within 56 days of the later of either the actual or expected date of birth.
An employee must inform their employers of their intention to take paternity leave by the end of the fifteenth week before the baby is expected, and it must include:
- the week the baby is due
- whether they wish to take one or two weeks' leave
- when they want their leave to start
Changing leave dates
Providing 28 days written notice is given the employee can change their mind about when they want to start the leave and when they want to return.
Recovery of payments
Statutory Maternity Pay (SMP), Statutory Adoption Pay (SAP) and Statutory Paternity Pay (SPP) are all Social Security benefits and are funded by national insurance contributions, but that is not strictly true, your business could be funding a percentage of it.
Unlike SSP, where there is a type of sliding scale of recovery, it is possible to recover either 92% of your SMP payments if your total Class 1 NI payments in the previous year were greater than £45k or 104.5% if you paid less than £45k Class 1 NI in the preceeding year. It is recovered by deduction from your regular Revenue payments or by lump sum upon special request to HMRC.
Protection against unfair treatment or dismissal
It is automatically unfair for an employer to dismiss, or refuse to offer the old job back (maternity and adoption leave for up to 39 weeks only), or discriminate against an employee for maternity, adoption or paternity leave related reasons. The employee has a right to a written statement of the reasons for the dismissal. There is no minimum service requirement for these rights.
