Benefits during ordinary maternity leave (OML)

During OML an employee has a statutory right to benefit from the terms and conditions which would have applied to her had she been at work, except for the terms providing for her "remuneration" Therefore, all contractual benefits (such as annual leave, pensions, health club membership, private use of a company car and so on) will continue during OML.

Benefits during additional maternity leave (AML)

A woman whose expected week of childbirth) (EWC) started on or after 5 October 2008 is entitled to the same protection during AML as during OML - that is, she is entitled to benefit from the terms and conditions which would have applied to her had she been at work, except for terms related to her "remuneration".

Employees with EWCs before that date are only entitled to the benefit of a much more limited range of terms and conditions during AML:

• The implied obligation for the employer to preserve mutual trust and confidence.
• Disciplinary and grievance procedures.
• Any terms of employment relating to notice of termination by the employer.
• Any terms relating to contractual redundancy.

Enforcement

A woman who is deprived of any contractual or discretionary benefits due to having taken OML or AML may (depending on the facts) have one or more of the following claims:

• A claim for deduction from wages..
• A claim that she has been subjected to a detriment for a reason connected with pregnancy, giving birth, maternity suspension or taking OML or AML.
• A claim for breach of contract.
• A claim for automatically unfair dismissal, if there is a serious breach of contract and she treats herself as constructively dismissed.
• A claim under the Sex Discrimination Act.

Discrimination

An employer discriminates against an employee if it treats her less favourably than it would otherwise have done on the ground that she has exercised or sought to exercise her statutory rights to maternity leave, or on the ground that it is obliged to give her compulsory maternity leave. It is also unlawful discrimination during a "protected period" (from the start of pregnancy to the end of statutory maternity leave) to treat a woman less favourably on grounds of pregnancy.

Statutory maternity pay

An employee will be entitled to SMP if:

• She has been continuously employed for at least 26 weeks at the end of the Qualifying Week, which is the 15th week before the expected week of childbirth (EWC), and is still employed in that week.
• Her normal weekly earnings are not less than the Lower Earnings Limit (LEL) for National Insurance purposes.
• She gives 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 is still pregnant 11 weeks before the start of the EWC or has already given birth.
• She supplies a certificate from a midwife or doctor, confirming the date of her EWC. This must be given to the employer 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.