It is important to know your rights before handing in your notice. Employment law specialist, June Salmon, looks at what to do if you are considering resigning from your job during pregnancy, maternity leave, or after returning to work.
If you are looking to hand in your notice during your pregnancy, while you are still at work, you should do so in the usual way, giving the contractual notice period required by your employer. When you resign may impact whether or not you qualify for maternity pay.
You will be entitled to statutory maternity pay if your job ends during or after the end of the 15th week before your baby is due (this is usually around the 26th week of pregnancy). If your job ends before this 15-week mark, you will not be entitled to statutory maternity pay, but may be entitled to maternity allowance instead.
Qualifying Conditions for Maternity Pay
You will be entitled to Statutory Maternity Pay if you meet all of the three qualifying conditions below:
- You have been employed by the same employer for at least 26 weeks by the end of the 15th week before your child’s is due to be born (the due date).
- You are still employed in the same job in the 15th week before your child’s due date. This still counts if you are employed for one day of the week.
- You earn at least £123 per week on average before tax in the eight weeks up to the last pay day before the end of the 15th week before your child is due.
Once you have qualified for Statutory Maternity Pay you are entitled to receive the payment in full from your employer for 39 weeks even if:
- you resign
- you are dismissed
- you are made redundant
- your contract ends
- you decide not to go back to work after maternity leave
However, if you begin working for a new employer during your statutory maternity pay period, it will cease to be payable.
How Much Is Statutory Maternity Pay?
Statutory Maternity Pay is paid for 39 weeks. It is paid at two rates. For the first six weeks you will receive 90% of your average pay. This is calculated from the pay you received in the eight weeks up to the last pay day before the end of the qualifying week (the 15th week before the expected week of childbirth). After the first six weeks, you will then receive a flat rate of £156.66 per week for 33 weeks or 90% of your average earnings if it is less than £156.66.
Your employer will pay your Statutory Maternity Pay in the same was as your salary is usually paid. This includes any tax and national insurance contributions being deducted.
When Can I Begin to Receive Statutory Maternity Pay?
You can begin to receive statutory maternity pay 11 weeks before the expected week of childbirth. You can choose yourself when you wish to begin receiving your maternity pay unless:
- you have a pregnancy related illness in the last four weeks before your expected week of childbirth. Your pay will begin the day after your first day absent from work.
- your baby is born before you begin your maternity leave. Your pay will begin the day after.
- you are unemployed. In this case your pay will begin from 11 weeks before your expected week of childbirth or from the day after your job ends if that is later.
I Am Not Planning on Returning to Work After Maternity Leave, When Should I Resign?
If you do not intend to return to work after your maternity leave ends, you may wish to wait until after the birth to decide in case your circumstances change. You do not need to tell your employer how much maternity leave you are taking as they should assume you are taking the full 52 weeks.
If you do decide to return to work after having your child, you will be entitled to receive your Statutory Maternity Pay for the remaining 39 weeks (unless you begin new employment) as well as any contractual benefits such as annual leave, up to the end of your notice period.
Can I get Maternity Allowance?
If you do not qualify for Statutory Maternity Pay, are unemployed, or self-employed, you may qualify for Maternity Allowance.
To get Maternity Allowance you need to:
- have been employed or self employed for at least 26 weeks of the 66 weeks before the expected week of birth.
- determine 13 weeks in which you have earned over £30 per week on average. These working intervals don’t need to be accrued consecutively and you can add together earnings from multiple jobs.
Maternity Allowance is paid by Jobcentre Plus for 39 weeks at £156.66 per week for 39 weeks or 90% of your average earning if it is less.
Occupational Maternity Pay
Many employers provide a contractual right to maternity pay that exceeds the SMP entitlement. Sums payable in respect of a week in which SMP is due can be counted towards the SMP liability for that week, if they relate to contractual remuneration and are often referred to as occupational maternity pay.
Will I Have To Repay Occupational Maternity Pay if I Resign?
Some employers require employees to repay enhanced maternity pay if they do not return to work for a minimum period such as three, six or sometimes 12 months after maternity leave. It is not possible to create an obligation to repay SMP.
The purpose of imposing a condition to return for a minimum period is to improve rates of return. To make a repayment obligation enforceable your written consent is required prior agreement taking place.
You are entitled to receive any occupational maternity pay up until the end of your notice period. Your contract or employer’s maternity policy will detail whether you are required to repay your occupational maternity pay if you don’t return to work for a reasonable period after maternity leave.
Your employer cannot ask you to repay any Statutory Maternity Pay or any Maternity Allowance to Job Centre Plus.
If you would like to discuss any points in this article further or are looking for legal advice relating to Maternity Leave either as an employee or as an employer, please contact our Employment team at Spire Solicitors LLP on 01603 677077.