Extract from Business Link Employer’s Guide on Maternity
Terms and conditions during AML - births due before 5 October 2008
During AML, an employee continues to benefit from all her statutory employment rights. However, during the AML period for an employee whose expected week of childbirth (EWC) begins before 5 October 2008, only some contractual terms and conditions continue to apply.
You must continue to abide by the terms and conditions of employment relating to:
- notice periods
- any compensation if the employee is made redundant
- the business' disciplinary or grievance procedures
The employee must continue to abide by the terms and conditions of employment relating to:
- notice periods
- disclosure of confidential information
- acceptance of gifts, or other benefits
- working for another employer
In addition, the employee continues to benefit from your continued trust and confidence. The employee must continue to act in good faith.
Whether or not other contractual terms and conditions continue to apply depends on the contract of employment - or you can decide on a discretionary, case-by-case basis.
Terms and conditions during AML - births due on or after 5 October 2008
An employee whose EWC begins on or after 5 October 2008 is entitled to benefit from all her contractual terms and conditions - except wages or salary - throughout her entire maternity leave period, ie during both OML and AML.
Continuous employment and maternity leave
Both OML and AML count towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
Only OML counts for assessing seniority and personal length-of-service payments, such as pay increments, under her contract of employment. (For employees whose EWC begins on or after 5 October 2008, both OML and AML will count.)
Therefore, when assessing length of service for a pay rise for example, you can ignore any period of AML for any women whose EWC begins before 5 October 2008.
Benefits during maternity leave
Whether or not certain benefits continue throughout maternity leave depends on the contract of employment.
Accrual of annual leave
An employee continues to accrue their statutory annual leave entitlement of 4.8 weeks throughout both ordinary maternity leave (OML) and additional maternity leave (AML).
Currently an employee's contractual annual leave entitlement - ie any holiday entitlement over and above the statutory minimum - continues to accrue only during OML. It is up to you - in agreement with the employee - whether or not they accrue contractual annual leave entitlement during AML. (For employees whose expected week of childbirth begins on or after 5 October 2008, contractual annual leave entitlement will continue to accrue throughout both OML and AML regardless.)
An employee may not take annual leave during maternity leave. You should instead allow the employee to take any untaken annual leave before and/or after her maternity leave.
Note, however, that:
- an employee cannot carry over statutory annual leave from one leave year to another
- you cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated
If, for example, an employee plans to start her maternity leave on 1 July, she will accrue 2.4 weeks' statutory paid annual leave between then and the end of the leave year (running from 1 January to 31 December). You should therefore allow her to take her full entitlement to 4.8 weeks' annual leave before her maternity leave begins. Her maternity leave begins automatically if she gives birth during this period of annual leave - see the page in this guide on when maternity leave can begin.
It is up to you - in agreement with the employee - whether or not she can carry over or will receive pay in lieu for any untaken contractual annual leave. See our guide: know how much holiday to give your staff.
Contributions to an occupational pension scheme (OPS)
During OML (whether or not the employee is receiving statutory and/or enhanced maternity pay) and any period of paid AML, you should calculate the employer's contribution to an OPS as if the employee is working normally and receiving the normal remuneration for doing so.
During any period that your employee is on additional maternity leave but not receiving any maternity pay - eg during the last 13 weeks of AML - you do not have to make any employer contributions to an OPS unless the contract of employment provides otherwise.
If the OPS rules require employee contributions to continue during maternity leave, her contributions should be based on the amount of statutory and/or enhanced maternity pay she is receiving.
Employee contributions will therefore stop during any period of unpaid maternity leave - eg during the last 13 weeks of AML - but the OPS rules may allow her to still make voluntary contributions.