ECNI - Pregnancy and maternity - Pregnancy and maternity (2022)

Table of Contents
If I appoint a pregnant woman is she entitled to maternity leave and pay? Must I pay statutory maternity pay if the employee decides not to return to work? If I pay contractual maternity pay over and above SMP, can I recover it if the employee resigns? Does the employee have to pay back contractual maternity pay if she is made redundant? Does the contract of employment continue during maternity leave so that the employee has continuous service? What benefits continue during maternity leave? Must I give a pregnant employee the same pay rise as other employees if she is about to go on maternity leave for a year? Must I give a pay rise to a woman on maternity leave? Is an employee on maternity leave entitled to a bonus for that period? Must I continue paying towards the employee’s pension during her maternity leave? If an employee is sick during her maternity leave, is she entitled to sick pay? I don't want to offer a pregnant employee training as she will have forgotten it by the time she returns Must I offer training to an employee on maternity leave if it is available to other employees? What if an employee on maternity leave chooses not to attend training and so loses out on promotion? An employee has underperformed and says this is because of her pregnancy related illness. Can I mark her down? If an employee is going to be on maternity leave at the time we do performance reviews, what must I do? An employee on her probation period says she is pregnant. Can I extend her probation if her performance has been affected? A pregnant employee is due to be considered for promotion. Can this wait until she returns from maternity leave?

If I appoint a pregnant woman is she entitled to maternity leave and pay?

You must allow her to take maternity leave, provided she gives the required notice by no later than the end of the 15th week before the expected week of childbirth or, if later, as soon as reasonably practicable. It is unlikely that she will be entitled to statutory maternity pay as she will need to have started the job before she became pregnant (i.e. have worked for you for at least 26 weeks up to the 15th week before the expected week of childbirth).

Further information is available online onNI Direct's website

Must I pay statutory maternity pay if the employee decides not to return to work?

You must pay statutory maternity pay (SMP) for the full 39 weeks even if your employee is not going to return to work and you cannot ask her to repay SMP.

For circumstances that affect the payment of SMP, including where the employee works for another employer or gets a pay rise, see GOV.UK's website

If I pay contractual maternity pay over and above SMP, can I recover it if the employee resigns?

It depends what your contract of employment with the employee says. If it says that she must pay back the contractual maternity pay if she does not return to work or remain in work for a minimum period after her return from maternity leave, then you are entitled to reclaim the amount you paid over and above SMP. You may not be able to rely on the contract to claim repayment if you have broken the contract yourself, for example by discriminating against the employee.

Does the employee have to pay back contractual maternity pay if she is made redundant?

An employee only has to pay back contractual maternity pay if her contract says that she must pay it back if she is made redundant.

Many employers do not enforce repayment of contractual maternity pay when an employee is made redundant however this is a matter for consideration in each particular case.

Does the contract of employment continue during maternity leave so that the employee has continuous service?

Yes, unless the contract is broken for example the employee resigns or a fixed term contract comes to an end without being renewed.

Any period of maternity leave must be treated as though the employee is working for the purpose of calculating her length of service for any service related benefits, redundancy payments or for claiming unfair dismissal.

This means that you and the employee must follow all the obligations under the contract. All policies and procedures apply as they would if the employee were not on maternity leave, unless you need to make special provision to remove any disadvantage because of her maternity leave. For example, you should not expect an employee to attend a recruitment or promotion interview soon after giving birth.

What benefits continue during maternity leave?

  • Benefits provided solely for business use, such as a company car and;
  • Pay/remuneration (which is generally replaced by statutory maternity pay and any contractual maternity pay, for example under an employer’s contractual maternity pay scheme).


Examples of benefits that you must continue to provide during maternity leave include:

  • Accrued annual leave.
  • Pension contributions during the paid period; the employer contributions are based on normal pay, but the employees’ are based on maternity pay.
  • Participation in share ownership scheme.
  • Membership of health club.
  • Reimbursement of professional subscriptions.
  • Health and life insurance.
  • Use of company car, unless it is for business use only.
  • Use of mobile phone, laptop unless it is for business use only.
  • The benefit of a pay rise.
  • Salary sacrifice schemes such as childcare vouchers.

Must I give a pregnant employee the same pay rise as other employees if she is about to go on maternity leave for a year?

Yes, a pregnant employee must be treated in the same way as if she was not pregnant. Her pay rise must be reflected in her earnings related statutory maternity pay and any contractual maternity pay.

Must I give a pay rise to a woman on maternity leave?

Yes, you must give a pay rise to a woman on maternity leave if she would have received a pay rise if she was working. Any pay rise must be incorporated into any earnings related statutory or contractual maternity pay.

For example, if a woman on maternity leave is receiving contractual maternity pay and staff are are awarded a two per cent pay rise, failure to include this in a woman’s contractual maternity pay would be unlawful discrimination. Her contractual maternity pay must be recalculated so it is based on her salary plus the two per cent increase.

Is an employee on maternity leave entitled to a bonus for that period?

An employee on maternity leave is not usually entitled to a bonus for that period, except for the compulsory maternity leave period, but it may depend on the type of bonus. She must be paid a bonus relating to work done prior to maternity leave and this must be paid at the same time it is paid to other employees.

There may be some situations where all employees are given a discretionary bonus irrespective of the work they have done, for example, a discretionary loyalty bonus. In these circumstances, a woman on maternity leave may argue that she should receive this. The legal position will depend on the facts of each case so you should seek legal advice about your employee’s entitlement.

Must I continue paying towards the employee’s pension during her maternity leave?

Yes, you must continue paying towards the employee’s pension during her maternity leave for at least the paid part of maternity leave. The employer’s contributions are usually based on the employee’s normal salary when working. The employee’s contributions are based on her actual income during maternity leave, i.e. statutory or contractual maternity pay.

If an employee is sick during her maternity leave, is she entitled to sick pay?

No, she is not entitled to sick pay during maternity leave. Once she has returned to work she will be entitled to sick pay in the same way as any other employee.

I don't want to offer a pregnant employee training as she will have forgotten it by the time she returns

You must not deny training to a woman because she is pregnant or about to go on maternity leave, and must not make the assumption that she will forget it. If there is training during her maternity leave, it would be good practice to discuss using a Keeping in Touch (KIT) or Shared Parental Leave in Touch (SPLIT) day to attend.

Must I offer training to an employee on maternity leave if it is available to other employees?

Yes, you must offer training to an employee on maternity leave if it is available to other employees, particularly if the employee would be disadvantaged by being excluded from training. The law suggests that where a woman on maternity leave is excluded from a training course because she is on maternity leave, and this disadvantages her in relation to her career or pay, this would be maternity discrimination. You could agree with the employee to provide her with alternative training. It is good practice to discuss this with your employee.

What if an employee on maternity leave chooses not to attend training and so loses out on promotion?

An employee does not have to attend training during maternity leave if she chooses not to. It would be advisable to provide the training to her as soon aspossible after her return from maternity leave so that she is not disadvantaged.

An employee has underperformed and says this is because of her pregnancy related illness. Can I mark her down?

If her poor performance is on the grounds of her pregnancy or pregnancy related absence then you must not mark her down in her appraisal. To do so would be pregnancy discrimination. You can take account of any poor performance, which occurred before she became pregnant as this was clearly not affected by her pregnancy.

If an employee is going to be on maternity leave at the time we do performance reviews, what must I do?

It is good practice for you to consider whether it is practical to have the review before she goes on maternity leave. It is best if you can carry out a performance review before her maternity leave, if possible. If it is not possible, then you must make sure that she is not disadvantaged because she does not have a performance review for that year. If her bonus or promotion is linked to her review score, you must treat her as if she had a normal performance review and pay her bonus in any event.

An employee on her probation period says she is pregnant. Can I extend her probation if her performance has been affected?

You must not extend the probation period if the reason for your employee’s poor performance is because of her pregnancy or pregnancy related illness. But, if extending her probation period is justified by the extent of poor performance before she became pregnant, you can do so because the reason for the extension is not related to her pregnancy.

A pregnant employee is due to be considered for promotion. Can this wait until she returns from maternity leave?

No. You must treat your employee as though she was not pregnant or about to be on maternity leave. She must be considered for promotion regardless of her pregnancy or impending maternity leave. To do otherwise would be pregnancy discrimination.

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