Statutory Maternity Pay Guide for Employers (2012-2013)

Statutory Maternity Pay Guide for Employers (2012-2013)

Exceptions to the normal conditions for SMP

Reinstatement after dismissal

If the employee did not work for you during the period you worked out using the tables:

  • because you dismissed her, and
  • she is then reinstated because an employment tribunal decides that you dismissed her unfairly, or
  • if you reinstate her as a result of a statutory grievance procedure

they are entitled to SMP as if they had not been dismissed.

All other rules apply.

Reinstatement following service in the Armed Forces

If the employee did not work for you during the period you worked out using the tables, because she was serving in the Armed Forces and she returned to work for you within six months of the end of her service in the Forces, she may still be able to get SMP.

For SMP the employee must have been continuously employed by you for at least 26 weeks by the end of the QW. Do not count the period she served in the Armed Forces as part of the 26 weeks.

All other rules apply.

Break in employment

For SMP the employee must have been continuously employed by you for at least 26 weeks by the end of the QW. To work out the latest start date for employment with you use the tables.

Some breaks between periods of employment will not interrupt a period of continuous employment for SMP purposes. These are:

  • temporary cessation of work – including short-term contract or agency workers
  • public holidays – the employee can still get SMP
  • sickness or injury – the employee can get SMP if the total period of incapacity is 26 weeks or less
  • paternity, parental and adoption leave – if the employee took paternity leave when they were adopting a child or when a baby was born and they worked for you before and after the break she will satisfy the employment rule
  • pregnancy – if your employee was not working for you because of a birth, and she worked for you before and after the break, and the break is not more than 26 weeks.

Employees with an ongoing contract of service during such breaks would remain continuously employed.

Trade Disputes or industrial action

Your employee must have been continuously employed by you for at least 26 weeks by the end of the QW.

Do not count the period they were on strike, even for one day, as this week will not count as part of the 26 weeks as your employee must have been employed for 26 weeks from the start of their employment into the QW.

All other rules for SMP apply.

Employee leaves job after the start of the QW or when the baby is born

Your employee cannot get maternity leave if they have left their job but may still qualify for SMP.

It does not matter why she left or that she is not coming back – she is entitled to SMP if she satisfies the qualifying conditions.

If your employee starts work for a new employer before her baby is born, you are still liable to pay SMP, for more information please see When does SMP stop?

There are special rules for when you start to pay. Find the date of the Sunday of the 11th week before the week baby due using the tables.

If she leaves before that date the SMP pay period starts on the Sunday of the 11th week before the week baby due unless the baby is born before then, in which case, the SMP pay period will start the day after the date the baby is born.

If she leaves her employment after the start of the 11th week, and before any other event which may trigger her pay, then the pay period starts the day following the day on which she left her employment.


Premature or early birth after QW

If the baby is born early there are special rules for when your employee needs to give you evidence and when you start to pay. All the other terms and conditions apply. Your employee will not have been able to give you advance notice, but they must tell you the date of birth as soon as possible.

Evidence

Your employee should give you medical evidence of the date the baby was due and the date of birth. This is usually the form MATB1 Maternity Certificate. You can accept a birth certificate as evidence of the date of birth.

Your employee should give you the evidence within 21 days after the date of birth, or as soon as she can if this is not possible and not later than 13 weeks after the start of the SMP pay period.

Start of leave and payment

The maternity leave and SMP pay period starts on the day after the date of birth. All the other rules on payment apply.

Baby born in or before the Qualifying Week (QW)

If the baby is born in or before the QW, there are special rules for all four of the terms and conditions.

The employee has to:

  • give you medical evidence of the date the baby is due
  • have been continuously employed by you for the required period
  • have AWE high enough in the relevant period
  • give you acceptable notice for start of SMP.

Evidence

Your employee should give you medical evidence of the date the baby was expected to be born as well as the actual date of birth.

This is usually the form MATB1 Maternity Certificate. But you can accept any document signed by a doctor or midwife as long as a date or expected date is provided. You can also accept a birth certificate as evidence of the date of birth.

Your employee should give you the evidence within 21 days of the start of her SMP pay period or as soon as she can but no later than 13 weeks after the start of the SMP pay period.

Continuous employment rule

If the baby is born before or during the QW, the continuous employment rule is satisfied if she would have completed 26 weeks continuous employment with you had it not been for the baby’s early birth.

Does your employee earn enough?

If your employee has earnings, which vary from week to week, you must work out her AWE. This is because you must pay her 90 per cent of the AWE for the first six weeks. Use the SMP Checksheets but change step 1 and step 2, as shown below.

Step 1

Enter the baby’s date of birth.

Step 2

Find the date of the Saturday before the date of birth.

Follow the rest of the steps. When you decide whether your employee earns enough or not, compare the amount in step 6 (weekly) or step 9 (monthly) with the amounts shown on the SMP Checksheets. The total AWE should be compared to the LEL on the Saturday before the actual date of birth.

When should your employee give you dates for pay and periods of leave?

For pay she must give notice within 28 days of the date of birth or as soon as she can if she cannot do it within the 28 days.

For leave she should give notice as soon as reasonably practicable.

If she does not choose to take her full leave entitlement she must give you eight weeks’ notice of when she intends to start work again.

Start of leave and payment

Maternity leave and the SMP pay period start on the day after the date of birth.


Stillbirth

Your employee is entitled to SMP and maternity leave if the baby is stillborn. A stillbirth occurs if the baby is stillborn from the 24th week of pregnancy. You will need evidence before making payment. This could be a stillbirth certificate issued by the registrar or certificate/ notification for the registration of a stillbirth issued by the attending midwife/doctor. The rules are the same as for a live birth.

If a baby is born alive but survives only for an instant, it is a live birth whenever it is born and you should apply the rules for a live birth.

The baby dies

If the baby dies during the SMP pay period, payment should continue as normal.


Pregnancy-related absence

If the employee is absent from work because of her pregnancy and the absence continues into or starts within the four-week period starting on the Sunday of the 4th week before the week baby due, see the tables of important dates for SMP and Maternity Leave, there are special rules for when her leave starts and when you start to pay.

The SMP pay period and her maternity leave start on the day after the first complete day of absence from work because of her pregnancy within the four-week period. This may mean that you have to pay a mixture of wages and SMP at the beginning or end of the period.

If you are not sure whether the employee’s absence is caused by her pregnancy contact any HMRC office or the Employer Helpline for advice on 08457 143 143.

Employee becomes sick

If the employee becomes sick during the SMP pay period do not pay her Statutory Sick Pay (SSP) but continue to pay her SMP as normal.

If the employee returns to work within the Maternity Pay Period and then goes sick during that period, SMP is payable and not SSP.

For further information about SSP when your employee is pregnant, see E14(2012) Employer Helpbook for Statutory Sick Pay.


You take over a business

If you take over a business or part of a business and the Transfer of Undertakings (Protection of Employment) Regulations 2006 apply, then continuity of employment is not broken. The Transfer of Undertakings (Protection of Employment) Regulations 2006 are often referred to as the TUPE Regulations.

The regulations apply when you take over an economic entity (a business, part of a business or a service provision) and take over the contracts of employment of the employees being transferred with the business. The ‘employee liability information’ which the transferor or employer must provide will give the identities of those employees being transferred with the business.

If you are not sure if the TUPE apply:

If the regulations do not apply, continuity of employment may still be not broken when:

  • a teacher in a school maintained by a local education authority moves to another school maintained by the same authority, including maintained schools where the governors of the school, rather than the local education authority, are the teacher’s employer
  • one corporate body takes over from another as the employer by or under an Act of Parliament
  • the employer dies and their personal representative or trustees keep the employee on
  • there is a change in the partners, personal representatives or trustees
  • the employee moves from one employer to another and at the time of the move the two employers are associated, for example
    • one is controlled by the other either directly or indirectly, or
    • both companies are controlled by a third party, either directly or indirectly.

If continuity of employment is not broken the employee can get SMP. This applies as long as she worked for you and the previous employer during the period you worked out using the tables.

If continuity of employment is broken and you take on the business:

  • after the start of the QW, the previous employer must pay SMP to the employee if she was employed by the previous employer in the QW. The woman is still entitled to 52 weeks maternity leave
  • before the start of the QW, the employee licannot get SMP. You must issue form SMP1 within 7 days of the decision being made. This must all be done within 28 days from the date the employee gave notice of absence (or the date she gave birth if this had occurred earlier). The woman will be entitled to maternity leave.

All the other rules for SMP apply. See the tables for working out the periods to use.

You cease to trade

If you cease to trade you remain liable to pay any outstanding SMP payments until your employee has received their full entitlement or their entitlement ends for one of the reasons outlined throughout this Helpbook.

You become insolvent

If you become insolvent during the SMP pay period, HMRC will pay your employee’s SMP from the date of the insolvency.

You should tell your employees to contact the HMRC Statutory Payments Disputes Team on 0191 22 55221. It will help if you or the administrator, liquidator or other similar officer can let us know which of your employees are affected so that HMRC can pay them as soon as possible.

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