2 Employment
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2. Do I need a contract of employment?
3. Do I have the right to work in the UK?
4. What is the least I should be paid?
5. How many hours can my employer make me work?
6. Does my employer have to recognise my trade union?
7. What if I´ve been dismissed unfairly?
8. Bringing a statutory claim for unfair dismissal
9. What if I´ve been made redundant?
10. Bringing a contractual claim for wrongful dismissal
11. What if I´ve been discriminated against?
12. What are my rights if I work part-time?
13. What are my rights if I'm having a baby?
If you are having a baby, you are allowed to take time off to have the baby and for a period after the birth. There are also rules on your right to go back to your job after you have had your child. You can also have time off to deal with matters to do with your children when they are young.
What leave can I get while I am pregnant?
Pregnant employees can have paid time off to go to appointments for antenatal care. This can include relaxation classes as well as medical check-ups, as long as the appointment has been made on the advice of a doctor, midwife or health visitor.
If your employer asks, you must show a certificate confirming you are pregnant, and proof of any appointments except for your first ante-natal appointment. During your time off, you should be paid at your normal rate. If your employer refuses this time off without good reason, or refuses to pay you for the time off, you can complain to an employment tribunal.
What leave can I have when I have my baby?
The rules on the amount of total maternity leave you can take changed on 1 April, and the amount you can take depends on when your baby was born or is due.For a baby born on or after 1 April 2007, you can take a total of 52 weeks' maternity leave, made up of 26 weeks' ordinary maternity leave (OML) and then 26 weeks' additional maternity leave (AML).
If your child was born on or before 1 April 2007, you can take 26 weeks' OML. And if you have been with your employer for at least 26 weeks before the start of the 14th week before your child is due (called EWC: expected week of childbirth), you can also get 26 weeks' AML.
To take OML, you must tell your employer you intend to take it by the end of the 15th week before your EWC. You also need to tell your employer the date on which you want to start your OML -normally any date from the beginning of the 11th week before your EWC (but not earlier). Naturally, if you give birth earlier than expected, your OML will also start earlier. If possible, you should give your employer 28 days' notice of a change to the date of starting OML. Within 28 days of telling your employer of when you want to take OML, your employer must write to confirm the date on which you are expected to return to work.
There is also a period known as compulsory maternity leave (CML). This is the two weeks after your child is born, during which you are not allowed to return to work. But this is normally counted as part of OML, rather than additional to it.
You will be entitled to Statutory Maternity Pay (SMP) from your employer, as long as you have been employed by them for at least 26 weeks at the end of the 15th week (known as the 'qualifying week') before the EWC. Also, you must have been earning at least enough (currently an average of £87 a week before tax) to pay national insurance contributions during the eight weeks up to and including the qualifying week.
You must give at least 28 days' notice to your employer of the date you want to start receiving SMP. (You would normally do this at the same time as you tell them about OML.)
If your baby was born on or before 31 March 2007, SMP is paid for the first 26 weeks of your maternity leave at the following rates:
- for the first six weeks, you will get 90 per cent of your average gross (before-tax) weekly earnings with no upper limits; and
- for the remaining 20 weeks, you will get £112.75 a week, or 90 per cent of earnings if you normally earn less than £112.75 a week (though this amount is reviewed each year).
For a baby born on or after 1 April 2007, SMP is paid for 39 weeks at the following rates:
- for the first six weeks, you will get 90 per cent of your average gross (before tax) weekly earnings with no upper limits; and
- for the remaining 33 weeks, you will get £112.75 a week, or 90 per cent of your earnings if you normally earn less than £112.75 a week (though this amount is reviewed each year).
If you cannot get SMP, you may be able to get Maternity Allowance (MA) if you are expecting a child or have just given birth and if you have been employed or self- employed for 26 weeks in the 66 weeks before your baby is due. You must also earn on average at least £30 a week. MA can be paid for up to 26 weeks (if your EWC was on or before 31 March 2007), or up to 39 weeks (if your EWC is on or after 1 April 2007). Maternity Allowance can start from the 11th week before your baby is due. The two rates of MA are:
- £112.75 per week (the 'standard rate'); or
- 90 per cent of your average weekly earnings if these are less than £112.75.
What if I can't get maternity pay?
If you cannot get SMP or MA, you may be able to claim Incapacity Benefit or Income Support and possibly a Sure Start Maternity Grant. For information about how these work, and how to apply for them, contact your local Benefits Agency office, which is listed in the phone book. Alternatively, visit the Department for Work and Pensions website -see 'Further help'.
What happens when I go back to work?
During OML and AML you are still classed as an employee. These periods will count towards your statutory rights. This means you are protected from unfair dismissal and you keep your right to a redundancy payment and to have disciplinary and grievance procedures followed. However, only OML will count towards seniority, pensionable service and other benefits based on your time with your employer (length-of-service benefits).
If you return to work at the end of your OML, you can return to the same job you were doing before you started OML. You also have a right to any improvements in the terms and conditions that happened while you were on OML.
If you return to work at the end of your AML, you can return to the same job you were doing before you started your AML, unless this would not be practical for your employer. If it is not practical, you can go back to a job which is suitable for you and on the same (or better) terms than your previous job. If your employer can't offer you either of these options, they may have to pay you a redundancy payment.
You don't need to tell your employer if you want to return to work after OML or AML unless you want to return early. In this case you must give your employer:
- 28 days' notice, if your baby was born on or before 1 April 2007; or
- eight weeks' notice, if your baby is due on or after 31 March 2007.
Normally, you will lose one week's SMP for each week or part of a week that you work for your employer while they are paying you SMP. However, if your child is due or was born on or after 1 April 2007, you can work for up to 10 days, called 'keeping in touch' days, without losing SMP.
What if I don't want to return to work?
If you decide not to return to work after OML or AML, you must give your employer the same notice that you would if you were leaving for any other reason. If you qualify for SMP, you will stay on the payroll until your entitlement ends. After that, you will receive a P45. If you are not getting SMP, your employment will finish at the end of the contractual notice period or the end of your maternity leave, whichever comes first.
14. Can I take leave as a new father?
15. What are my rights if I´m adopting a child?
16. What other leave can I get after my child is born or adopted?
17. Can I change my working arrangements if I have children?
18. Can I take time off if I am someone´s carer?
This leaflet is published by the Legal Services Commission (LSC). It was written in association with Ian Hunter, Head of the Employment Department, Bird & Bird, Solicitors.
The leaflets are regularly updated but the law may have changed since they were printed so the information in them may be incorrect or out of date.
Leaflet Version: July 2007
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