Having a family toolkit

It is often a good idea to tell your employer you are pregnant because once they are aware, your employer;

• should immediately take into account any risks identified in your workplace risk assessment including any specific risks to new and expectant mothers (read from the HSE here)
• should not subject you to unfavourable treatment
• must make any reasonable adjustments if required
• must record any pregnancy-related sickness separately to ‘normal’ sickness absence
• must allow you paid time off for antenatal care appointments.

You do not have to tell a prospective employer that you are pregnant when you are applying for a job. The fact that you are pregnant should not be taken into account when determining who gets the job.

If it were taken into account and you were treated less favourably, it would be viewed as discrimination.

Contact us for further advice if you think you have been discriminated against because of your pregnancy.

Employers must give all pregnant employees reasonable paid time off for antenatal care appointments (including parent-craft and relaxation classes) made on the advice of a registered medical practitioner, midwife or health visitor. This is regardless of how long you have worked for your employer.

Your employer may request proof of the appointment, for example a letter or your appointment card. The amount of paid time off should include travelling time and waiting time at the hospital or clinic.

Read more about time off for antenatal appointments on Acas.

Agency workers are not entitled to paid time off for antenatal care until you have completed at least 12 weeks continuous employment with the same employer.

Read more about agency workers rights on Maternity Action and here on our agency advice guide. 

Partners do not have a right to paid time off for antenatal appointments but there may be allowance for paid leave in the contract or local maternity/ paternity policy.

If there is no allowance within the contract, the partner of a pregnant woman will be entitled to take unpaid time off work to accompany the woman to up to two antenatal appointments (with an allowance of 6.5 hours for each appointment).

A “partner” includes the spouse or civil partner of the pregnant woman and a person (of either sex) in a long-term relationship with her. It also extends to those who will become parents through a surrogacy arrangement, under certain circumstances. The right is available to employees from the start of employment and to agency workers who have worked in the same job for at least 12 weeks.

Read more about partners rights on Acas and see our shared parental leave section.

There is no legal right for employees to take time off work for fertility treatment. Employers should treat fertility appointments the same as any other medical appointment.

We would hope the employer would be supportive and options could include a flexible working arrangement or a combination of paid, unpaid, or annual leave during the treatment. 

Read more about this on ACAS and see our sections on sickness and discrimination.

If you are classed as an employee, you have the right to take time off to deal with any unexpected or sudden problem involving a dependent.

A dependent may be a husband, wife or partner, child or parent, or someone living with you as part of your family. Others who rely solely on you for help in an emergency may also qualify.

What about pay during time off for emergencies?

The right to time off for dependants does not include a statutory right to pay. Whether you will receive pay depends on your local policy or your employment contract.

Your employer may have a ‘carer's leave' policy that entitles you to a limited amount of paid time off a year to deal with emergency situations. If the employer does not have any local policy, discuss options with your manager such as working the time back, taking annual leave, parental leave or going unpaid for a short period. Read more about time off work here.

How long can I take off?

You are entitled to take as much time as you need, provided it is a real emergency. For example, if your child falls ill you may take off time to deal with their initial needs such as taking them to the doctor and arranging for their care. You will need to make other arrangements if you want to stay off work longer to care for them yourself.

What if I know in advance?

You cannot request time off for dependants if you know in advance that a problem may arise.

You may be able to come to an arrangement with your employer by taking another form of leave, such as carer's leave, changing your shifts or going unpaid for a period of time. 

When to contact the RCN

Discuss the issues with your manager and look at your local policy. If you believe they are being unreasonable or are treating you unfairly, contact us for further advice. 

Read more about time off work here.

Parental leave is time off that employees who are parents can take to spend time with their child up until the child's 18th birthday.

Employees are entitled to take up to eighteen weeks of parental leave per child.

Read more about time off work here and see information on Shared Parental Leave (ShPL) in our maternity leave section.

Request

If you are pregnant or a new mother, talk to your manager and request a risk assessment as soon as possible.
See our section on telling employers and why it is a good idea to tell them. 

Preparation

You can prepare for the risk assessment by writing down specific areas that you find difficult and note how they affect you physically and/or mentally. Discuss these and any work-related concerns about your health or your baby’s health with your doctor or midwife.  If they advise you that there could be a risk, ask for a letter to show to your employer. Also, look at your maternity policy as it should cover risk assessments. 

If you are employed by the NHS, see section:
15.33 of NHS terms and conditions for England and Wales and Scotland (for new mother see 15.76).
15.34 of NHS terms and conditions for Northern Ireland (for new mothers see  15.53).

Outcome

You have the right to be notified of the outcome of the risk assessment, so ask for this if it is not given to you.

If your employer has identified a significant risk that could damage your health and safety, they will need to decide what action to take. Your employer has a duty to reduce the level of risk so far as is reasonably practicable. If the risk cannot be reduced to a safe level then you have the right to be offered suitable alternative work. The word ‘suitable’ is a subjective term but consideration should be given to pay, status and type of work. The terms of your contract should remain the same whilst undertaking any suitable alternative work, for example your pay should not change.

If there is no suitable alternative, you should be suspended on maternity grounds. You should receive your normal wages or salary for as long as the suspension lasts.

If there are any issues with the alternative work offered (for example if it affects your pay or well being) , please contact us for further advice.

Statutory Maternity Pay (SMP)

SMP is paid if: 

• you are an employee (although special rules apply if you’re working on the bank/for an agency, see our section on Bank and agency)
• you have worked for your employer for a continuous period of at least 26 weeks ending with the qualifying week. This period must include at least one day in the qualifying week. This is known as the continuous employment rule

AND

• your average weekly earnings in the relevant period have been at least equal to the Lower Earnings Limit (LEL) for National Insurance contributions.
  Read more about eligibility for SMP here.

SMP is paid up to week 39 of your maternity leave:

• 90 per cent of your average weekly earnings for the first six weeks
•  followed by either the SMP standard rate or 90 per cent of your average weekly earnings (whichever is lower) for the remaining 33 weeks.

The earliest your SMP can start is 11 weeks before the date your baby is due. You don’t have to repay SMP if you decide not to return to work. SMP is paid through your employer’s payroll department, so you should speak to them if you believe there has been a mistake in the calculation of your entitlements.

You can check your entitlement to SMP by using the government's calculator.

Maternity Allowance (MA)

If you don’t qualify for SMP you may be eligible for Maternity Allowance (MA).

Based on your recent employment and earnings you may be eligible to claim up to 39 weeks’ MA through your local Jobcentre Plus. 

To qualify for MA you must have been employed or self-employed for at least 26 weeks of the 66 week period up to the beginning of the week the baby is due. You must also have been earning £30 per week or more over a 13 week period.

The earliest your MA can start is 11 weeks before the date your baby is due and the latest is from the day following the birth. You don’t have to repay MA if you decide not to return to work.

You can use the maternity entitlement calculator to work out how much you could get.

To get NHS contractual maternity pay you need to satisfy a few conditions. Do you have?

A)12 months continuous service with one or more NHS employers at the beginning of the 11th week before your baby is due?  *Please note breaks in NHS service of 3 months can be disregarded but will not count as service.

AND

B) 26 weeks continuous service with the same NHS employer at the beginning of the 15th week before your baby is due?

If YES to A and B:

It is likely you are eligible for NHS contractual maternity pay which is:

• 8 weeks *‘full pay’ including Statutory Maternity Pay (SMP)
• 18 weeks 'half pay', plus SMP (except if  this will exceed ‘full pay’)
• 13 weeks SMP 
• 13 weeks unpaid.

If YES to A and NO to B:

It is likely you are eligible for NHS contractual maternity pay from your employer and Maternity Allowance (MA) from the government which is:

• 8 weeks on *'full pay' minus MA (and it is likely that you will be entitled to claim MA separately from the government)
• 18 weeks 'half pay' (and it is likely that you will be entitled to claim MA separately from the government)
• 13 weeks unpaid from your employer (and it is likely that you will be entitled to claim MA separately from the government)
• 13 weeks unpaid.

If NO to A and YES to B:

You are likely to receive Statutory Maternity Pay (SMP) for up to 39 weeks.

If NO to both A and B:

You might be eligible to receive Maternity Allowance (MA).  Read more here about eligibility rules and use gov.uk's maternity pay calculator to work out how much you could get.

Do check the calculations with your HR/Payroll. These are the basic entitlements only. 

NHS maternity pay rules

There are rules on how and when you should inform your employer about your maternity leave and there is a requirement to return to NHS employment for three months. If you do not return to the NHS, you could be liable to repay your NHS maternity pay.

Always read your employer's policies, check with your Human Resources (HR) department , see  our section on when to start your maternity leave and section 15 of the NHS handbook.

Calculation of *'full pay'

Full pay will be calculated using the Average Weekly Earnings (AWE) rules. Read more about this in the 'Calculation of NHS full pay' section.

Maternity entitlements can vary widely in the independent sector.

Do you have 26 weeks continuous service with your employer at the 15th week before your baby is due?

If YES:

Check your contract and maternity policy. If you do not get contractual maternity pay, you should receive Statutory Maternity Pay (SMP) subject to eligibility rules. 

If NO:

You may be eligible to receive Maternity Allowance (MA).

Use gov.uk's maternity pay calculator to work out how much you could get. 

NHS Bank work and reckonable service

Bank workers are generally not regarded as employees and therefore do not build up 'continuity of service' in between specific bank shifts. Read more about reckonable service and the NHS bank in our Agenda for Change guide.

If you have more than one job, see our other sections on maternity pay (NHS employed/Non NHS employed).

Working for the NHS bank during maternity leave

You must check your contract and local maternity policy before working on the NHS bank during paid maternity leave, as most NHS employers do not allow this. Also, working on the NHS bank (whilst receiving Statutory Maternity Pay (SMP) can affect your SMP.

Agency workers

As an agency workers, you may be able to get Statutory Maternity Pay (SMP), but you cannot get Statutory Maternity Leave (SML). Read more about your rights on Maternity Action and on gov.uk.

If, while studying, you are working on the bank, for an agency, or on a self-employed basis, you may have satisfied the eligibility criteria for either Statutory Maternity Pay (SMP) or Maternity Allowance (MA). 

Sadly, the receipt of a bursary is not treated as ‘earnings’ for SMP purposes.  

For advice about possible benefit entitlement:

• contact your university’s Welfare Adviser
• read our Student Money guide (especially the section on ‘Benefits for students with children’).

If you feel you are being unfairly treated on your course of if you require further assistance, contact us.

Taking leave from your studies

England, Wales and Scotland - If you need to leave your course to have a baby or adopt a child, but intend to return to the same course at a later date, you should notify whoever provides your funding (e.g. Student Finance England). If possible you should give them an approximate date for when you intend to return to your course. The provider will suspend your financial support until the time you start to attend the course again.

Further information

Read more about Statutory Maternity Pay (SMP) or Maternity Allowance (MA). 

Full pay will be calculated using the Average Weekly Earnings (AWE) rules.

Your employer will average your gross earnings over a period of at least eight weeks up to and including the last payday before the end of your qualifying week. The qualifying week is the 15th week before the week your baby is due.

You might like to consider trying to increase your earnings for this period. Remember it is the amount that you are actually paid in that period that is taken into account. Always check your contract and maternity policy.

If you become pregnant whilst on maternity leave, see our section here for your rights to maternity pay and leave.  

You can use the maternity pay calculator to work out how much you could get.

If you are employed by the NHS, section 15 of the NHS handbook covers the calculation of maternity pay.

You may need RCN support whilst on maternity leave to help you negotiate flexible working requests or if you have work place issues.

To support our members throughout every stage of their careers, you can opt for a ‘career break’ when you go on maternity leave. 

For a reduced fee of just £10 a year you can stay in membership whilst on maternity leave and continue to access RCN legal cover, support and representation, as well as all of our other services and our member discounts. if you do require RCN support, you would simply need to rejoin at the full membership rate.

Read more about this here, along with how to contact our membership team.

As an employee, if a pay award was implemented whilst you were on maternity leave or during your Average Weekly Earnings period (AWE), this should also apply to you. You should not be treated any differently or suffer any detriment because you are pregnant or because you are on maternity leave. 

If you are employed by the NHS, section 15.22 of the NHS terms and conditions states:

'(i) in the event of a pay award or move to a higher pay point being implemented before the paid maternity leave period begins, the maternity pay should be calculated as though the pay award or new pay point had effect throughout the entire Statutory Maternity Pay calculation period. If such a pay award was agreed retrospectively, the maternity pay should be re-calculated on the same basis;

ii) in the event of a pay award or move to a higher pay point being implemented during the paid maternity leave period, the maternity pay due from the date of the pay award or new pay point should be increased accordingly. If such a pay award was agreed retrospectively the maternity pay should be re-calculated on the same basis.'

If you are unsure, you should check your contract and maternity policies and talk to your payroll department and employer.

If you are at a detriment or you cannot resolve the issue with your employer, please contact us.

Further information

Statutory Maternity Pay: employee earnings affected by a pay rise

Our pregnancy timeline can help you calculate your AWE weeks.

The decision of when to start your maternity leave can be a difficult one.

The earliest you can start your maternity leave - is the beginning of the 11th week before your baby is due. If you have your baby early, your maternity leave will start the day after.

The latest you can start your maternity is 15 weeks before your baby is due. The 15th week is also known as the ‘qualifying week’.

If you haven't given notice to start your maternity leave, it will automatically start the day after your baby is born. If you are off with pregnancy related sickness in the 4 weeks before the baby is due, it will generally start then. You can continue working right up until your due date if you want to but check your employer's policies.

It might be helpful to:

• calculate what annual leave you have left to take for this leave year
• calculate what annual leave you will accrue during your maternity leave and

consider:

• would you like to take some time before the baby is born or at the end of your maternity leave instead?
• would you like to share your maternity leave (Shared Parental Leave (SPL) with your partner?
• your health, you might like to rest leading up to the birth, rather than work.

Discuss your ideal scenario with your manager.

Remember, your employer has to agree when you take your annual leave. Make sure you get your agreement in writing to avoid disputes later on.

Use the gov.uk maternity planner to work out the dates for your ordinary and additional leave and our Pregnancy timeline can help you understand the important dates in your pregnancy.

The latest you can tell your employer when you want to go on maternity leave is 15 weeks before your baby is due. The 15th week is also known as the ‘qualifying week’.

Giving notice

To give notice you should:

• inform your employer that you are pregnant
• inform your employer of your due date (the Expected Week of Childbirth)
• submit your MATB1 form which will confirm this date
• inform your employer of the date you intend to start your leave and start receiving maternity pay, this should be provided in writing
• check your employer’s maternity policies carefully for full details on how to give notice.

If you are employed by the NHS, please see section 15 of the NHS handbook.

Your employer's response

Your employer must tell you the end date of your maternity leave within 28 days of receiving your formal notification. A default end date of 52 weeks after the start of your maternity leave is usually used.

If you don’t give your employer the required notice for the start of your maternity leave, you may lose your right to start your leave on your chosen date.

Your employer is only required to make exceptions to this in limited circumstances.

Remember if you are off with pregnancy related sickness during the four weeks before your baby is due, your maternity leave could start early. If you do not think that your absence is wholly or partly because of your pregnancy, you can ask your employer to reconsider their decision. If you disagree or need support, it is important that you contact us for further advice.

You can change your mind about your maternity leave start date, but there are notifications requirements you need to meet.

Check your employer’s policy, but usually you should give your employer notification of the new start date by whichever is the earlier of either:

• 28 days before the date you originally intended to start your leave or,
• 28 days before the new date you want to start your leave.

Sometimes it is not reasonably practicable to give this much notice (for example, the baby is born early and you have to start your leave straight away) but for any other reason you should give your employer as much notice as possible.

Notification should be in writing if your employer requests this. Written confirmation will help avoid any dispute later on.

You may be entitled to ordinary Statutory Paternity Leave and Statutory Paternity Pay (SPP) if you satisfy certain conditions. For the purposes of SPP, HM Revenue and Customs treats each NHS trust as a separate employer. If you change NHS employers you may lose your entitlement to SPP.

In addition, you could have the right to share statutory entitlements to leave and pay with your partner. Read more about Shared Parental Leave (SPL) here and on the Acas website.

Shared Parental Leave (SPL)

Shared Parental Leave (SPL) and Shared Parental Pay (ShPP) gives eligible parents the opportunity to share leave and pay during the child's first year.

To be entitled to SPL and ShPP both the mother/adopter and the father/partner need to meet specific eligibility criteria.

To check if you are eligible in England, Scotland and Wales, you can use the leave and pay calculator on gov.uk and read more about SPL here.

Read more about SPL and ShPP in Northern Ireland here.

If you are employed by the NHS, please also see section 15 of the NHS handbook.

Always check your contract/workplace policy to clarify what you are entitled to.

If you are an NHS employee, please see NHS entitlements and qualifying criteria for adoption in section 15 of the NHS handbook.

If you work outside of the NHS or do not meet NHS eligibility criteria, see gov.uk for eligibility criteria for statutory adoption leave and pay.

Please note, some employees will not qualify for both leave and pay.

Overseas adoption

If you are adopting a child from overseas, different rules apply. See gov.uk for further information.

England, Wales and Scotland

If you need to leave your course to have a baby or adopt a child, but intend to return to the same course at a later date, you should notify whoever provides your funding (for example Student Finance England).

If possible, you should give them an approximate date for when you intend to return to your course. The provider will suspend your financial support until the time you start to attend the course again.

Read more about students and maternity pay here and contact us if you feel you are being unfairly treated. 

Further information

Student’s advice guide. 

You may need RCN support whilst on maternity leave to help you negotiate flexible working requests or if you have work place issues.

To support our members throughout every stage of their careers, you can opt for a ‘career break’ when you go on maternity leave. 

For a reduced fee of just £10 a year you can stay in membership whilst on maternity leave and continue to access RCN legal cover, support and representation, as well as all of our other services and our member discounts. if you do require RCN support, you would simply need to rejoin at the full membership rate.

Read more about this here, along with how to contact our membership team.

If you are an NHS employee and become pregnant whilst on maternity leave, see section 15.22 (iv) of the NHS Terms and conditions, and our guidance on NHS maternity pay.

If you work outside of the NHS, see your contract and policies on contractual maternity pay, you will be entitled to this if you meet the qualifying criteria.

If you did not/do not get contractual maternity pay, see Maternity Action for information on Statutory Maternity Pay (SMP) and Maternity Allowance (MA). 

If you have more than one job and work for another employer whilst receiving Statutory Maternity Pay (SMP), but before the baby is born, your employer should continue to pay you SMP.

If you work for another employer whilst receiving SMP but after the baby is born, this can affect your SMP. It is your responsibility to inform your employer that you are also working for another employer.

Your SMP will stop if, after your baby is born, you work for an employer who did not employ you at the 15th week before the Expected Week of Childbirth (EWC). The same rules apply to agency work.

If you do any work in a self-employed capacity during your SMP, then such work will not affect your SMP. 

If you do any unpaid voluntary work during your SMP, then such work will not affect your SMP.

You may be allowed to work for another employer during unpaid maternity leave but you must check your contract and local policies before doing so.

Some employers might allow you to work bank shifts when you are on unpaid maternity leave, but there may be a restriction on the number of bank shifts you are allowed to work.

You must ensure that working on this basis does not enable your employer to consider that you have ‘returned to work’. This would end your maternity leave.

You must check your contract and local maternity policy before working on the NHS bank during paid maternity leave, as most NHS employers do not allow this. Also, working on the NHS bank (whilst receiving Statutory Maternity Pay (SMP) can affect your SMP.

For more information about maternity pay and agency or bank work please see our maternity pay section.

Any pregnancy-related sickness absence must be recorded separately to normal sickness absence. It should not be used for disciplinary or redundancy purposes or considered under absence management procedures.

Important: If you are off sick for a pregnancy-related reason during the *four weeks before your baby is due, your employer could require you to start your maternity leave at this point.

Check your local policies (maternity and sickness) and if you do not think that your absence is (wholly or partly) because of your pregnancy, ask your employer to reconsider their decision. It is important that you contact us if you need support.

*Find the Sunday at the start of your Expected Week of Childbirth (EWC) from your MATB1. Count back four Sundays. This is the start of the 4th week before the week your baby is due. 

You may also find our Pregnancy timeline helpful.

If the sickness is unrelated to your pregnancy, you will normally be able to take sick leave until you start your maternity leave as planned.

In these circumstances, you will normally receive Statutory Sick Pay (SSP) or contractual sick pay right up to the date of your baby’s birth, or until the date you have notified your employer as the date you intended your maternity leave to start, whichever is sooner.

Check your local policies (maternity and sickness) and please contact us if you feel that you are being unfairly treated.

Depression during pregnancy

Women do not just experience postnatal depression, depression during pregnancy is very common.

If you are struggling with your mental health it’s important to talk to your GP or midwife. You might also need support from your Occupational Health department (if you have one).

If you are absent due to pregnancy related depression please see our section on pregnancy related sickness and read more about depression during pregnancy on Maternity Action.

As an RCN member you can use our counselling service for free, confidential support.

Please remember to contact us if you feel that you are being unfairly treated.

Postnatal depression

Postnatal depression is very common, affecting more than one in ten mothers. Please read more about post-natal depression on the NHS. Please see our information on sickness and discrimination if you need to take time off work for postnatal depression.

If you feel that you are being unfairly treated due to postnatal depression, please contact us for advice. Remember, as an RCN member you can use our counselling service for free, confidential support through challenging times.

Sickness whilst receiving SMP

You cannot receive Statutory Sick Pay (SSP) or contractual sick pay whilst receiving Statutory Maternity Pay (SMP). If you normally receive contractual sick pay, it is at your employer’s discretion whether they choose to top up your SMP with occupational sick pay.

Sickness when not receiving SMP

Statutory Sick Pay (SSP) could be paid during a period of maternity leave without pay. For example, if your SMP has finished and you are not receiving any pay, you should apply for SSP. Read more about this on Maternity Action.

You should inform your employer that you are sick and let them have whatever evidence they require from you. If you fall ill whilst on unpaid additional maternity leave, you will not generally be eligible to receive any contractual sick pay. However, if you have given the required notice that you will be returning to work before the expiry of your additional maternity leave period then you may be eligible for sick pay if you are unable to return on the due date owing to sickness. 

Check your local maternity policy and sickness policy and contact us if you need support.

You may need to take sick leave to deal with the side effects of fertility treatment, or take annual or unpaid leave for appointments. Check your employer’s leave policies for any specific provision for fertility treatment. Managers should be sympathetic when dealing with this sensitive area.

The advanced stage of fertility treatment is between the retrieval of the ova followed by the immediate transfer of the fertilized ova. If you take sick leave during the advanced stage in your fertility treatment and are dismissed, you may be able to claim direct sex discrimination as once an embryo has been implanted you are legally pregnant, therefore protected under the Equality Act 2010. See our section below on discrimination and our section on pregnancy related sickness. 

Fertility treatment and discrimination

If the treatment is successful and you remain pregnant, you will be protected against discrimination on the grounds of pregnancy until the end of your maternity leave.

If the treatment is unsuccessful, protection will end two weeks after the end of the pregnancy. If a pregnancy test is taken two weeks after implantation and if the test is negative, the protected period extends for two more weeks.

Check your local policies as some employers may give paid leave for fertility treatment. Read more about this and your rights at Acas.

Resigning during pregnancy 

Think very carefully before you resign if you are pregnant as this will have implications for your maternity pay. See our maternity pay section and the eligibility criteria.

If you do not want to go back to work after the birth of your baby, this will not affect your right to Statutory Maternity Pay (SMP) or Maternity Allowance (MA) but it is important to check your contract for any clause which requires you to pay back any contractual maternity pay if you decide not to return.

If you are on NHS terms and conditions, a clause does exist within the NHS contract regarding repayment of contractual maternity pay. The NHS handbook states that to claim NHS contractual maternity pay, you must intend to return to work for the same or another NHS employer for a minimum period of three months after your maternity leave has ended. The handbook is silent on any further details but it can generally be assumed that this means that you need to return on a contract of employment. It is important that you read your employer’s maternity leave policy and talk to your manager about your concerns.

Please see section 15 of the NHS terms and conditions for more information and specifically: 
15.82 For England, Wales and Scotland
15.41 for Northern Ireland
If you do not return to NHS employment within 15 months of the beginning of your maternity leave, then you will be liable to repay the whole of your maternity pay (minus the SMP or MA that you have received).

If you are employed outside the NHS, read your contract of employment or local policy to determine when you need to return and the notice period you need to give.

If you are undecided whether to leave your employer, keep your options open and when you have made a decision, ensure you fulfil the notice requirements.

If you resign or are dismissed before the date you start your maternity leave, or before you have a notified date to start your maternity leave, you lose the right to maternity leave from that employment along with any contractual maternity allowances. This is because your contract has ended.

You are still eligible for Statutory Maternity Pay (SMP) if you meet the eligibility criteria. Read more about resignations and maternity pay on Maternity Action.

If a redundancy situation occurs whilst you are on maternity leave, you are entitled to priority treatment.

For example, if your employer has a suitable vacancy, they must offer it to you in preference to any other employee who is similarly affected by the redundancy situation but who is not absent on maternity leave. The vacancy must be suitable, appropriate for you to accept and must not be substantially less favourable than your previous job or original contract.

Where no vacancy exists, the employer can dismiss you on the grounds of redundancy. However, care must be taken that you are properly consulted and given correct notice.

You are entitled to receive a written statement of the reasons for your dismissal without having to request it, regardless of your length of service. Provided you have the necessary two years’ service, you will also be entitled to a statutory redundancy payment.

Once the dismissal takes effect, the maternity leave period automatically comes to an end. If your employer offers contractual redundancy pay you may also be entitled to this. You should check your employer’s local policy. Read more about your rights to Statutory Maternity Pay during redundancy here.

You are not entitled to additional protection if a redundancy situation occurs before you start your maternity leave. Nevertheless, protection against discrimination because of pregnancy continues while you are pregnant.

If you have told you are being made redundant, gather your contract and any relevant paperwork and contact us for advice.

Further Information

Maternity Action

NHS employees on fixed term

Under NHS terms and conditions, if you are employed on a fixed-term contract that is due to expire after the 11th week before your baby is due (and you have 12 months’ continuous service with one or more NHS employers at the beginning of the 11th week before your baby is due), your contract will be extended to allow you to remain in employment for the full 52 weeks of maternity leave you are entitled to.

Please see 15.83 of the NHS handbook for England, Scotland and Wales and 15.42 of NHS handbook for Northern Ireland.

If there is no right of return to be exercised because the contract would have ended if pregnancy and childbirth had not occurred, then usual repayment provisions will not apply. See 15.85 of the NHS handbook for England, Scotland and Wales and 15.44 in Northern Ireland.

Non NHS employees on fixed term

You should not be treated less favourably than a permanent member of staff.

If your fixed term is not renewed or extended you need to consider the reasons why.
If the job or work still exists, and your contract was not renewed or extended because of your pregnancy or maternity leave, this could be discriminatory.

If, as a result of your pregnancy or maternity leave, your fixed term contract is ended early, not renewed or not extended please contact us.

Read more fixed term contracts.

Bank or agency workers who are not entitled to maternity leave are protected for two weeks after the birth. During and after the protected period you are also protected against automatic unfair dismissal under the Employment Rights Act 1996 and detrimental treatment because of pregnancy, pregnancy-related illness because you have given birth. This could include postnatal depression or conditions linked to childbirth.

Please check your local policies (recruitment, maternity and sickness etc) and please contact us for further advice if you feel that you are being unfairly treated.

Read more about agency worker rights on Maternity Action.

If you are employed by the NHS see section 15 of the NHS terms and conditions. This section covers risk assessments for new mothers, breastfeeding support and access to facilities:
15.33 of NHS terms and conditions for England and Wales and Scotland
15.34 of NHS terms and conditions for Northern Ireland.

Consider what adjustments you need before returning to work.

Explain the health reasons for breastfeeding, as your manager may not understand. NHS Choices information may help you.

If you are concerned about your employer's ability to provide appropriate facilities, a letter from your GP or health visitor may help. This could confirm that your work conditions will stop you breastfeeding and could potentially put your baby’s health at risk.

Be flexible with your requests. If additional breaks are not possible, for example, then consider using your tea and lunch breaks and taking them at different times.

You should not suffer any detriment because you are breastfeeding. Under equality law this may amount to discrimination

If you are having any difficulties agreeing adjustments with your employer, please contact us for further advice.

Your employer is legally obliged to provide suitable facilities for breastfeeding mothers to rest, however there is no clear guidance on what these facilities should be. It is not suitable for you to use toilets for expressing milk.

Your employer is legally required to provide somewhere for breastfeeding mothers to rest and, where necessary, this should include somewhere to lie down.

A warm, clean, lockable room would be helpful for expressing milk, and a clean refrigerator and facilities for washing, sterilising and storing receptacles might assist you. It is not always possible to provide all of this, so be as reasonable as possible and work with your employer.

ACAS has produced guidance for employers looking to accommodate breastfeeding in the workplace; this should help you discuss any concerns you have with your employer.

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Premature birth is considered to be a birth before the start of the 37th week of pregnancy.

Sadly, if your baby is born prematurely you are not currently entitled to any extra maternity leave or pay. Do check your maternity policy on this and read Miscarriage, stillbirth and neonatal death – rights to time off and pay on Maternity Action. If your baby is born prematurely and you have not yet started your maternity leave, your maternity leave will start on the day after the birth.

Remember, as an RCN member you can use our Counselling service for free, confidential support through challenging times.

Miscarriage or stillbirth can be life-changing events. Don’t forget that as an RCN member you can use our Counselling service for free, confidential support.  

Miscarriage or still birth before the end of the 24th week: If your baby is stillborn before the end of the 24th week of pregnancy it is treated as a miscarriage. Unfortunately, you cannot qualify for maternity leave or pay if you have a miscarriage. If you need time off work following the loss of your baby read your employer’s maternity policy. There should be some protection for sickness absence following a stillbirth or miscarriage before the 24th week of pregnancy as this can be classed as pregnancy related sickness absence.  

Miscarriage or still birth after the 24th week: If a stillbirth or miscarriage occurs after the 24th week of pregnancy, your rights to leave and Statutory Maternity Pay (SMP) or Maternity Allowance (MA) are not affected. This is also the case should your baby be born alive for only a very short period of time.

Do check your contract of employment and any local policies for details of any additional entitlements. 

Further information

Maternity Action’s Miscarriage, stillbirth and neonatal deaths – rights to maternity leave and pay. 

During this difficult time it can be hard to know what to do. It can be helpful to read your local maternity policy and speak to your manager about any concerns you have and remember to contact us if you feel you are being unfairly treated or if you need extra support. 

With the agreement of your employer, you may work up to 10 days during your maternity leave period. These are known as Keeping In Touch days (KIT).

Pay and KIT days

Always check your contract and maternity policy to see what is stated about pay for KIT days prior to agreeing to work them.

Often new mothers opt to take their KIT days during the unpaid period as then there are no implications on their Statutory Maternity Pay (SMP).

You may decline an opportunity to work a KIT day without suffering any consequences as a result. It is unlawful for you to suffer detriment for not agreeing to work KIT days or for working or considering working these days.

If you work in the NHS, read more about KIT days in the NHS handbook section 15.

If you work outside of the NHS, read more on Maternity Action.

If you do not want to go back to work after the birth of your baby, this will not affect your right to Statutory Maternity Pay (SMP) or Maternity Allowance (MA) but it is important to check your contract for any clause which requires you to pay back any contractual maternity pay if you decide not to return.

If you are on NHS terms and conditions, a clause does exist within the NHS contract regarding repayment of contractual maternity pay. The NHS handbook states that to claim NHS contractual maternity pay, you must intend to return to work for the same or another NHS employer for a minimum period of three months after your maternity leave has ended. The handbook is silent on any further details but it can generally be assumed that this means that you need to return on a contract of employment. It is important that you read your employer’s maternity leave policy and talk to your manager about your concerns.

Please see section 15 of the NHS terms and conditions for more information and specifically: 
15.82 For England, Wales and Scotland
15.41 for Northern Ireland
If you do not return to NHS employment within 15 months of the beginning of your maternity leave, then you will be liable to repay the whole of your maternity pay (minus the SMP or MA that you have received).

If you are employed outside the NHS, read your contract of employment or local policy to determine when you need to return and the notice period you need to give.

If you are undecided whether to leave your employer, keep your options open and when you have made a decision, ensure you fulfil the notice requirements.

You may need RCN support whilst on maternity leave to help you negotiate flexible working requests or if you have work place issues.

To support our members throughout every stage of their careers, you can opt for a ‘career break’ when you go on maternity leave. 

For a reduced fee of just £10 a year you can stay in membership whilst on maternity leave and continue to access RCN legal cover, support and representation, as well as all of our other services and our member discounts. if you do require RCN support, you would simply need to rejoin at the full membership rate.

Read more about this here, along with how to contact our membership team.