CIPD - Maternity, paternity and adoption rights

Employment law

Revised October 2008

This factsheet gives broad introductory guidance. It:

outlines the most important maternity rights, paternity rights and rights for couples or individuals who adopt a child
gives guidance for employers.

Women employees have had statutory maternity rights for many years. Since April 2003, fathers and adoptive parents also have statutory rights to paternity leave and adoption leave. Paternity and adoption leave rights also apply to partnerships of the same sex, so references in this factsheet to father, male employee, men, he, him, etc, should be taken as including women in same sex partnerships.

In addition to maternity, paternity and adoption rights, there has been an increasing recognition that all employees, not just those with children, need to achieve an acceptable work-life balance. Though not covered in this factsheet, other important family-friendly measures should be remembered, including the right to request flexible working, to unpaid parental leave and to time off for emergencies involving dependents. In a CIPD survey Flexible working and paternity leave: the full rate for fatherhood, a quarter of respondents had requested some form of flexible working. See our factsheet on balancing work and home life for more information on some of these issues.

The legal position

A very wide range of legislation governs maternity, paternity and adoption leave and pay. Most of the relevant legislation can be found consolidated into the Acts and regulations listed below. (Some of the details of the rights and principles contained in the main Acts are to be found in the implementing regulations and subsequent amendment regulations.)

The following legislation contains some of the most important provisions before 2003:

Social Security Contributions and Benefits Act 1992
Employment Rights Act 1996
Employment Relations Act 1999
The Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312)
Employment Act 2002
The Paternity and Adoption Leave Regulations 2002 (SI 2002/2788)

The following relevant legislation has come into force in the last few years:

The Civil Partnership Act 2004
The Work and Families Act 2006
The Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations 2006 (SI 2006/2014)
The Statutory Paternity Pay and Statutory Adoption Pay (General) and the Statutory Paternity Pay and Statutory Adoption Pay (Weekly Rates) (Amendment) Regulations 2006 (SI 2006/2236)
The Statutory Maternity Pay, Social Security (Maternity Allowance) and Social Security (Overlapping Benefits) (Amendment) Regulations 2006 (SI 2006/2379)
The Sex Discrimination Act 1975 (Amendment) Regulations 2008 (SI 2008/656)
The Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations 2008 (SI 2008/1966).

Changes to maternity, paternity and adoption rights by the present government have included:

An extension of Statutory Maternity Pay (SMP), Maternity Allowance (MA) and Statutory Adoption Pay (SAP) from six months to nine months.
Additional Maternity Leave (AML) for all working mothers regardless of length of service.
Arrangements for employers and employees to keep in contact during the leave period.
Optional Keeping in Touch days (KITs) to give employees the chance to go to work, to undertake training and keep in touch for up to 10 days without losing their right to maternity pay.
Provisions to ensure that employees give eight weeks notice if intending to return to work before the end of the maternity or adoption leave period.
An 'any day' start date for the maternity pay period to help align the leave with the pay period.
Clarification of the fact that women who are treated less-favourably can bring maternity-related discrimination claims (applies to women whose expected week of childbirth begins on or after 5 October 2008).
Equalisation of the position concerning terms, conditions and benefits during ordinary and additional maternity leave (applies to women whose expected week of childbirth begins on or after 5 October 2008) and during ordinary and additional adoption leave (where placement of an adopted child is expected on or after 5 October 2008).

Further changes which are expected to come into force in 2010 include:

A new right to additional paternity leave for fathers up to a maximum entitlement of 26 weeks to care for the child if the mother returns to work before using her full entitlement to maternity leave. This effectively gives mothers the right to transfer a proportion of their paid leave to their partner.
Further extending paid maternity and adoption leave to 12 months.

CIPD members can find out more from our Maternity, paternity and adoption leave and pay FAQs and Parental rights and other family-friendly provisions FAQs in the Employment Law at Work area of our website.

Maternity rights

Maternity leave

There are three levels of maternity leave:

Ordinary Maternity Leave (OML): Since April 2003, all pregnant employees are entitled to OML - there is no qualifying period. The length of the leave is 26 weeks. The allowances payable are SMP or MA (see below) and the paid period now extends into part of the additional maternity leave period (see below).
Compulsory leave: This is a period of two weeks immediately after giving birth during which the woman is not permitted to work. This is part of the ordinary maternity leave period, not additional to it.
Additional Maternity Leave (AML): Begins from the end of the OML and is for a period of a further 26 weeks - there is no qualifying period of employment for AML. Part of AML is unpaid. However, some organisations have more generous contractual terms and pay a woman during all her AML.

The earliest date a woman can start her maternity leave is the beginning of the eleventh week before the baby is expected. She must provide her employer with details of the week the baby is expected and the start date of her maternity leave. The employer must respond to this notification within 28 days and state the date by which the woman is expected to have returned to work after she finishes her full maternity leave entitlement – usually the end of her AML unless she chooses to return at an earlier date.

Maternity pay

Mothers who qualify are essentially entitled to up to 39 weeks' SMP. To qualify, the employee must:

work for an employer who is liable (or would be liable but for low earnings) to pay the employer’s share of Class 1 National Insurance contributions
have average weekly earnings in the eight weeks up to and including the qualifying week at or above the lower earnings limit for the payment of National Insurance contributions
have 26 weeks' continuous service with her employer assessed at the 15th week before the week the baby is due .

The first 6 weeks of SMP is paid at 90% of average weekly earnings and the remainder at the lower statutory level (currently £117.18 per week or 90% of the average weekly earnings if this is less than £117.18 per week). SMP rates are normally increased in April each year.

Women who do not qualify for SMP

These women may qualify for MA: this is based on their recent employment and earnings record and is a state benefit which is payable for 39 weeks. To qualify, a woman must:

be employed but not qualify for SMP, or be self-employed, or recently employed
have been employed or self-employed on at least 26 weeks of the 66 weeks ending with the week before the expected week of childbirth
earn at least a specified amount per week on average in any 13 weeks in the test period (currently £30).

Other benefits during materniy leave

The rules covering non-cash benefits applicable during maternity leave are complex and changed for women whose expected week of childbirth (EWC) commenced on or after 5 October 2008.

Essentially employers are now obliged to provide non-cash contractual benefits for example company cars, mobile phones, accommodation and insurance policies during both OML and AML. However the position concerning pension contributions is more complex. CIPD members can see more in our FAQs linked to above.

Other rights before, during and after maternity

In addition to maternity leave and pay, women employees who satisfy the relevant qualifying conditions are entitled to:

paid time-off to receive ante-natal care
return to the job in which she was employed, or one of equivalent status, with protected right to pay and conditions and benefits
time off to attend appointments for ante-natal care at the normal rate of pay, on producing proof of the appointment
request a risk assessment during pregnancy
request alternative work where any risks to the health of the expectant mother and baby can be avoided
remuneration on suspension on maternity grounds, if health and safety measures cannot be complied with
consideration of a flexible working request which may encompass reduced hours of work, part-time working, job shares, etc
unpaid parental leave
time off for care of dependents in an emergency
not be subjected to a a detriment, disadvantage, unfair treatment or dismissal because of the pregnancy, maternity leave, etc.

Generally speaking, less-favourable treatment of a woman who is pregnant, for example by changing her terms of employment or dismissing her, is a form of sex discrimination and may make an employer liable for an unlimited claim for damages.

Paternity rights

Fathers currently enjoy a limited paid statutory right to paternity. The eligibility factors are:

continuous employment for 26 weeks ending with the fifteenth week before the baby is due
the man must be the baby’ s biological father or the partner/husband of the mother
the man has (or expects to have) responsibility for the baby’s upbringing.

The entitlement to leave is based on a relationship with the child's mother, so paternity and adoption leave also apply to partnerships of the same sex. From 5 December 2005, unmarried ‘civil partners’ have had increased rights equivalent in many respects to those enjoyed by spouses. This includes entitlement to maternity, paternity and adoption leave and pay.

Paternity leave

The maximum duration of the statutory leave is two weeks. Paternity leave can start from:

the date of the baby’s birth or any day of the week following the birth. If the baby is born earlier than expected, then the leave must be completed within the period from the actual date of birth up to 56 days after the first day of the expected week of birth
within 56 days of the date of birth of the baby.

The employee has an obligation to inform the employer of the intention to take paternity leave by the end of the fifteenth week before the baby is expected. The employee must provide the following details:

the start date of the leave to be taken
the week the baby is expected
the duration of leave to be taken.

Paternity pay

An employee must complete a self-certificate to be entitled to Statutory Paternity Pay (SPP). The rate of SPP is the same as SMP (see above). However, an employee whose earnings are below the lower earnings limit for National Insurance purposes does not qualify for SPP. Such employees may be entitled to other welfare benefits.

Rights during and after paternity leave

A male employee who qualifies for paternity leave is entitled to:

return to the same job
return to the same terms and conditions of employment
not be subjected to a disadvantage, unfair treatment or dismissal.

Qualifying fathers are also entitled to unpaid parental leave and to request flexible working. In the CIPD survey of fathers (Flexible working and paternity leave - see link above), less than half said they would take paternity leave at the current pay level, but if paternity pay was raised to 90% of full pay, four in five fathers would take it.

Rights for adoptive parents

Individuals who adopt, or one partner of a couple where the couple adopt jointly, enjoy adoption rights. Subject to certain qualifying conditions, where an approved adoption agency notified an adopter of a match with a child on or after 6 April 2003, paid adoption and paid paternity leave are available.

Adoption leave

To qualify for paid adoption leave an employee must:

be newly-matched with a child for adoption by an approved adoption agency, and
have worked continuously for the same employer for 26 weeks leading into the week in which they are notified of the matched with a child for adoption (the 'matching week').

There are two types of adoption leave: 26 weeks ordinary adoption leave, immediately followed by 26 weeks additional adoption leave, giving a total of up to 52 weeks. During ordinary and part of additional adoption leave, most adopters will be entitled to SAP from their employers on a similar basis to that governing SMP (see above).

Adoption pay

SAP is payable for 39 weeks. The rate of SAP is the same as the lower rate of SMP (see above). Adopters whose average weekly earnings are below the lower earnings limit for National Insurance purposes do not qualify for SAP but may qualify for other welfare benefits.

Benefits during adoption leave

The rules covering non-cash benefits applicable during adoption leave are essentially the same as those applicable during maternity leave for those employees who expect to have an adopted child placed with them or after 5 October 2008.
CIPD members can find out more about adoption leave benefits in our FAQs linked to above.

Recovery of SMP, SPP and SAP

An employer is able to recover the cost of SMP, SPP and SAP from the Government. Large employers (currently defined as those whose annual national insurance payments are over £45,000) can recover 92% of their costs. A small employer (those whose annual national insurance payments are £45,000 and under) can recover 100% of the cost, with an additional bonus payment of plus 4.5% for payments made on or after 6 April 2008.

Complaints and remedies

If any of the above rights are breached, there is scope for the employee to complain to an employment tribunal for a breach of the statutory regulations. If an employee is dismissed while exercising any of their rights, this may render the dismissal as automatically unfair.

Guidance for employers

Employers should:

include references to maternity, paternity and adoption rights in equality, diversity and work-life balance policies.
make sure all policies are inclusive and coherent.
monitor, review and evaluate take up of policies to ensure that they:
- comply with the forthcoming extenstion to rights, and
- constantly meet the needs of both the business and the individual, and
- don’t exclude or cause unfair disadvantage.
use the full range of information sources when devising policies, for example Acas and CIPD.
build a culture of trust, so that employees have confidence in raising problems and issues.
be creative and innovative in retaining talented employees.
make sure that line managers understand their responsibilities in delivering their organisation’s policies, and know where further information and guidance can be found. Staff handbooks and employment literature should explain the provisions clearly and invite people to raise issues they do not understand.

Maternity, paternity and adoption rights