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Who is eligible for statutory maternity pay?

17 May 2022

An employee will be entitled to statutory maternity pay (SMP) if:

  • She has been continuously employed for at least 26 weeks ending with the Qualifying Week, which is the 15th week before the expected week of childbirth (EWC). Note, the legislation refers to the "end of the week immediately preceding the 14th week" before the EWC, which is the same thing as the end of the Qualifying Week. The 26-week period must include at least one day's employment in the Qualifying Week (so an employee who has resigned or been dismissed before the Qualifying week will not usually qualify, although there are exceptions).
  • Her normal weekly earnings are not less than the Lower Earnings Limit (LEL) for NICs purposes
  • She is still pregnant 11 weeks before the start of the EWC or has already given birth
  • She gives the employer at least 28 days' notice (or, if that is not reasonably practicable, as much notice as is reasonably practicable) of the date she intends SMP to start.
  • She supplies a certificate (usually a MAT B1) from a midwife or doctor, confirming the date of her EWC. This must be given to the employer either before the birth, no more than three weeks after the birth or, if she has good cause for delay, as soon as reasonably practicable.
  • She has ceased work

(Section 164, SSCBA and Regulation 22, SMP Regulations.)

Non-eligible individuals may qualify for Maternity Allowance (MA).

Individuals who do not qualify for SMP (for example, because they have left work before qualifying for SMP, have insufficient earnings or continuity of service, or are self-employed) may qualify for MA, which is a social security benefit paid by Jobcentre Plus.

A lower rate of maternity allowance is available to the unpaid spouses or civil partners of self-employed earners.

Who is an employee?

"Employee" for SMP purposes is wider than the standard ERA 1996 definition. It includes office-holders (such as company directors) whose earnings are taxed in the same way as employees (section 171(1), SSCBA) and Crown servants (section 169, SSCBA). It also includes anyone who is an "employed earner" for NICs purposes, such as agency workers other than models and homeworkers.

An employment business will therefore be liable to pay any SMP in respect of agency workers supplied by it. This does not necessarily mean that all agency workers who are employed earners are entitled to maternity leave, which is only guaranteed to employees as defined in the ERA 1996.

There may be a contractual right to maternity leave in the worker's contract. If not, she will qualify for SMP from the employment business if she stops working at the relevant time, having given the relevant notifications.

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