Do I have to pay them during maternity leave?

Do I have to pay them during maternity leave?

The issue of maternity pay has come up A LOT lately.

We’ve had several calls from clients indignant that new staff members have now told them they are pregnant.

So here’s the first thing:

You can’t fire them for not telling you they are pregnant – they are not legally required to, and you would immediately lose the tribunal.

However, although all pregnant staff are entitled to maternity leave, not all are entitled to maternity pay.

Maternity pay is my least favourite part of HR, mainly because it has a lot of convoluted maths in it.

For all pregnant employees you need to make sure that you get their MAT B1 certificate, which is issued by the midwives/GP at about 24 weeks.

The MAT B1 confirms the Expected Week of Confinement (EWC), i.e. when the baby will be born.

We need that date for all calculations, and, to be honest, as proof of a genuine pregnancy not a “you can’t fire me for poor performance” pregnancy.

Your employee will be entitled to maternity pay if:

  • She has been employed by you for 26 weeks at the end of the 15th week before the EWC;
  • She has given you the MAT B1;
  • She continues to be employed by you going into the 15th week before the EWC;


  • She is earning more than the lower earnings limit for NI per week (currently £116/week) in the 8 week “relevant period”.

(This is the 8 weeks up to and including the end of the 15th week before the EWC. See what I mean about convoluted maths?!)

If your employee has not earned enough in those weeks, she would not qualify for SMP.

This also affects how much she is paid in the first 6 weeks of the maternity leave and is not just a calculation of what she normally earns.

Here’s an example: one of our client’s pregnant employee was off sick a lot during the pregnancy.

So much that she used up her 20 days full sick pay and had moved on to 10 days SSP by the time she had got to 17 weeks pregnant.

Unfortunately for her, the 10 days SSP fell in the 8 week relevant period. So, although normally she would have got 90% of her normal salary, in this case she got 90% of normal salary less 10 days at SSP. Which meant £20 less per week than she would have got otherwise.

The rules for calculating maternity pay are set by the government.

You can be more generous, but the government will only refund the statutory amount of maternity pay, not any extra.

If you qualify for small business relief, you will be refunded 103% of statutory maternity pay, if not, 92%.

If your employee doesn’t qualify for maternity pay, then she may be able to get Maternity Allowance from the Job Centre. She would need to sort this out herself once you have given her form SMP1.

To summarise:

  • You DO have to let them have maternity leave,
  • You CAN employ someone to cover while they are off,
  • You may not need to pay SMP, and even if you do, you can recover a minimum of 92% from the government.

Any questions, please ask!

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