Some employers provide enhancements to Statutory Maternity Pay, for some or all of the maternity pay period. In a situation where an employer provides a contractual entitlement to enhance the Statutory Maternity Pay rates, the employee will have the right to enforce that higher pay rate against her employer. Most enhancement schemes are closely linked to the structure and provisions of entitlement to Statutory Maternity Pay.

Statutory Maternity Pay is paid by the employer. It is classed as earnings, so is subject to income tax and National Insurance

For a woman to be entitled to Statutory Maternity Pay she must have been:-

• Employed by her employer into the “Qualifying Week” – which is the 15^th week before the week the baby is due, AND
• Employed by her employer without a break (excluding any booked holiday or correctly notified sickness absence) for at least 26 weeks into the 15^th week before the baby is due. Any part week of employment will count as a full (i.e. unbroken) week for the purpose of calculating entitlement, AND
• Have pre-tax average weekly earnings to meet the lower earnings limit to have to pay National Insurance contributions. For the 2023- 2024 tax year this is £123 per week.

The earliest date that SMP can start is the beginning of the 11th week before the baby is due. The latest date for the start of SMP is the day immediately following the date of the birth of the baby.

If the woman chooses to continue working after the 11^th week before the week the baby is due she can decide when she wants the SMP to start. The SMP will usually start on the day she chooses to stop work to have the baby. Therefore the SMP will start on the first day of the employee’s maternity leave.

If the baby is born before the 11^th week, or the start of the woman’s chosen SMP pay period, the SMP will actually commence on the day following the actual birth date.

If the woman has a sickness absence caused by or related to pregnancy in the 4 weeks before the baby is due, the SMP will start on the day following the first complete day off work because of the pregnancy-related absence.

For any woman whose baby was due on or after the 1^st April 2007 the total period of payment of SMP is 39 weeks.

SMP is paid at:-

a. 90% of the woman’s average weekly earnings (with no upper limit) for the first 6 weeks; followed by:

b. The “standard rate”  of £172.48 per week (previously £156.66 from April 2022 to 2023. OR 90% of the woman’s average weekly earnings if lower than the “standard rate”, for the following 33 weeks.

In order to calculate the appropriate amount to pay the employer will take the average gross earnings in the 8 weeks up to and including the 15^th week before the expected week of the birth.

In the event of there being a pay rise which is effective at any time from the start of the 8 week calculation period and the end of the maternity leave period the employer will have to re-calculate the SMP figure and pay any balance due to the employee affected.

The woman must tell the employer when she wants the maternity pay and leave to start. This must be done by the 15^th week before the baby is due. It is possible for the date to be changed, but to do that the woman must give at least 28 days notice of the new date. The evidence that the baby is due is usually provided on the MATB1 certificate. This certificate cannot be issued earlier than 20 weeks before the baby is due.

If the woman has more than one job she may be able to get SMP from each employer.

Returning to work within the Maternity Pay Period

With the exception of "keeping in touch" days, if a woman returns to work within the normal maternity pay period she will then forfeit the right to any further maternity pay. A woman may agree to work a few days during her normal maternity period without losing the right to her maternity leave and maternity pay. The working days have to be agreed with her employer, and are known as "Keeping in touch" days.

If the woman leaves the employer’s employment at any time after the start of the 15^th week before the week in which the baby is due the employer must still pay the SMP (subject to her meeting the other initial qualification requirements). Even if the woman does NOT intend to return to work the SMP must still be paid; - and it does not have to be repaid.

Shared Parental Leave

The Government has introduced a right for parents to split the leave entitlement. This is known as Shared Parental Leave. The rates of take up have been quite low, which in our opinion is due to the complex nature of the regulations themselves. In order to take up the right to take Shared Parental Leave a parent has to opt-out of the Statutory Maternity Leave provisions. However, it is possible to opt back in to those provisions is wanted. For further details see our articles on Shared Parental Leave.