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What happens if you are dismissed before the qualifying week for statutory maternity pay?

19 May 2022

Statutory maternity pay (SMP) is available to "a woman who is or has been an employee" (section 164(1), SSCBA). It therefore does not matter if she takes maternity leave, resigns, or is dismissed for any reason including redundancy, misconduct or even the fact that she has lost the right to work in the UK; provided she has qualified for SMP and has "ceased work", she will be entitled to receive it.

Dismissal or resignation after the Qualifying Week.

Therefore, an employee who is dismissed or resigns during maternity leave, or indeed at any time after the Qualifying Week (the 15th week before the EWC), will still be entitled to the full SMP entitlement from her former employer. It is more than likely that any contractual maternity pay and benefits will cease on termination, but SMP will.

Dismissal or resignation before the end of Qualifying Week.

An employee who is no longer employed in the Qualifying Week will not usually qualify for SMP because she will not satisfy the rule on continuity of employment.

However, this rule is ignored in the very rare case of premature birth before or during the Qualifying Week. In such a case the employee's employment is calculated as if she had remained employed up to the end of the Qualifying Week (regulation 4(1), SMP Regulations).

The rule is also relaxed if the employer dismisses the employee before the Qualifying Week solely or mainly to avoid SMP liability. In such a case she is deemed to have the necessary continuity if she had 8 weeks' continuous employment at the date of dismissal (regulation 3(1), SMP Regulations).

Note that, even if work has already ceased, SMP cannot start before the 11th week before the EWC unless birth has occurred earlier.

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