Statutory Maternity Pay: Circumstances of the employee affecting payment (2023)

Employees furloughed under the Coronavirus Job Retention Scheme (CJRS)

These regulations apply if the employee's family-related statutory remuneration begins on or after April 25, 2020.

If your employee was on vacation and you paid him for part of the relevant 8-week period using the system, there are different rules for calculating his vacationSHY.

This ensures the suitability of your employeeSMPand earnings-related rate ofSMPnot affected if their wages were lower than normal because of the holiday.

The result used to work out theirSHYfor that portion of the 8 week period that they were on holiday, the greater of the two is what they:

• actually received from their employer
• would have received from their employer if they had not been on holiday

If it's not clear what the employee would have received, a helpful starting point is the reference salary, which is used to determine how much you've claimed through the system. For instructions seeWork out 80% of your employees' wages through the Coronavirus Job Retention Scheme.

You should also consider payments that the employee was supposed to receive during the relevant period that would have been classified as income. This could include:

• bonus payments
• commission payments

No changes to the way you work yours outSHYis needed where:

• You claimed the worker's wages through the system, but you topped it up to full wages at your own expense - the worker's earnings were no less than they would have been
• As a result of the COVID-19 pandemic, you have agreed on a non-tariff reduction in pay with your employee in the period in question

Employee income affected by a pay rise

A salary increase may not be withheld because of maternity leave.

You need to recalculate the average weekly earnings (SHY) to take into account increases in salary that have been granted or that would have been granted if your employee had not been on maternity leave.

This applies if the salary increase occurs at any time between the start of the 8-week statutory maternity benefit period (SMP) and the end of statutory maternity leave.

If a salary increase is granted after you have calculated your employee's income and that salary increase is from the start date of the relevant period but before the maternity benefit period (MPP) ends, you must:

• recalculateSHYincorporate the salary increase as if it were effective from the beginning of the relevant period
• pay any extraSMPdue

If a raise is granted, which when recalculated means the income is now high enough for your employee to receiveSMPIf they couldn't before, you must:

1. Train 90% of theSHY.
2. Take the standard set ofSMP.
3. Pay the difference for 6 weeks.

If 90% of theSHYbelow the standard rate, you may not have to pay your employee anything.

This is because they may have received the balance ofSMPfrom the Jobcentre Plus (or the Job and Benefits Office in Northern Ireland) as maternity benefit (MA).

Not all women are entitled to itMA, or theMAcan be smaller than thatSMPYour employee is now entitled to. You should ask them to get a letter from Jobcentre Plus (or the Job and Benefits Office in Northern Ireland) to confirm the amountMAhas been received.

If your employee gives you a letter from the Jobcentre Plus office (or Jobs and Benefits office in Northern Ireland) stating how muchMAhas been received:

1. Calculate the total ofSMPthey are entitled to it.
2. take those awayMAthat was paid for.
3. Take everyone awaySMPYou have already paid.
4. Pay your employee the difference.

Your employee should still benefit from a salary increase, even if she does not want to work for you again after the end of her parental leave.

If a salary payment is made after they have ended their employment and the salary increase is backdated to the time they worked for you or were on maternity leave with you, they may be entitled to the salary increase. You need to check the terms of your old employment contract.

If more than one salary increase was granted during maternity leave, then you need to make a separate calculation for each.

Underpayments and Overpayments

If there is overpaid or underpaid earnings related to theSHYdisadvantage either you or the employee, verify that there are supporting documents supporting the amount that should have been paid.

If used, the agreed earnings are to be calculatedSHY.

If not use actual revenue.

employee becomes ill

If the employee:

• becomessick during the SMP pay perioddo not pay statutory sick pay (SSP), keep payingSMPlike normal
• return to work within theMPPand then falls ill during that time, paySMP, notSSP

"Keep in touch" days

In order to stay in touch during parental leave and to make it easier for your employees to return to work, they can work for you for up to 10 days during their parental leave. This does not end their maternity leave or mean they lose theirsSMPfor all the weeks they work.

These 10 days are called “keep in touch” (KIT) days and have your employee attend training sessions or do odd jobs for you.

The employer has no right to itKITWork gets done and an employee doesn't have to do it. Before any work, you must agree with your employee:

• what work they will do
• if sheKITDays in a row, individually or in blocks - each work on any day (even an hour) counts as a wholeKITTag
• how much they are paid for their work

You can count the crowdSMPon the contractual wage agreed with your employee, but you must pay the weekly wageSMPWage to which the worker is entitled and compliance with your legal obligations (e.g. paying at least the national minimum wage).

If your employee has more than 10 days for you in hisSMPPayment period:

• You can't paySMPthem for all weeks where they work
• Your maternity leave is coming to an end

As soon as your employee turns 10KITdays they lose a weekSMPfor each week or part week they work for you.

TheSMPThe payment period is not extended by these weeks. AnySMPIn this way, the standard rate is always lost first, i.e. 90% of theSHYif this is lower than the standard rate.

A female worker must take maternity leave for 2 weeks - or 4 weeks if she works in a factory - immediately after the birth of the child and cannot work or workKITday at this time.

The employee returns to work and then falls ill

Where your employee has returned to work within theirsMPPand get sick what they can't getSSPfrom you. You should consider payingSMP.

Employee leaves job

Your co-worker cannot get maternity leave if she quit her job, but she can still qualify for itSMP.

It doesn't matter why they left or why they don't come back - they have a right to itSMPIf they meet the eligibility requirements, you cannot ask them to repay you.

Special rules apply to the start of payment. Calculate the date of the Sunday of the 11th week before the week of birth.

If you leave your employment before this date, theSMPPayment period begins on the earlier of the following dates:

• on the Sunday of the 11th week before the due date
• the day after the baby was born

If they end their employment after the beginning of the 11th week and before another payment-triggering event, the payment period begins on the day after the day of termination of employment.

The employee works for another employer

It is up to your employee to tell you that they are working for another employer and when they will stop working for that employer.

The employee starts working for another employer before or during the qualifying week (QW)

If your employee before the end of theQWyou have to keep payingSMPduring theMPP, even if they continue to work for that employer after the baby is born, unless one of the following applies:

The employee then takes up work for another employerQWand before the baby is born

Does your employee start afterQW, but before the birth of the child you do not have to pay anythingSMPfor all the weeks they work for that employer after the birth of the baby.

They need to be restoredSMPyour employee does not work for this employer for full maternity weeks after the birth.

If your employee's contract with that employer ends during theMPP, their claimSMPwill restart until the end ofMPP.

The employee starts working for another employer after the birth of the child

If your employee starts working for another employer after the birth of the child, you do not have to pay anythingSMPfor all the weeks they work for that employer.

You have to paySMPyour employee does not work for this employer during full maternity weeks.

If your employee's contract with that employer ends during theMPP, Entitlement toSMPalso ends and cannot be restarted.

You must issue your employeeSMP1 image.

Employees taken into custody

You can't paySMPfor allSMPPay week that your employee is in statutory detention (this usually means they are in prison) or for each week in the pay period thereafter.

You have to give the employeeSMP1 imagewithin 7 days of the decision. This must be done within 28 days of the employee's date of absence (or date of birth, if earlier).

It is the responsibility of your employee to let you know if they are in detention.

They are not in legal custody if they:

• voluntary support of the police in their investigations
• on security deposit
• serve a suspended sentence

employee dies

If your employee dies during theMPP, you should paySMPfor the week they die, but not for any week in theMPPthereafter.

baby dies

If the baby dies during theSMPPayment period, payment should continue as usual.

stillbirth

Your employee is entitled to itSMPand maternity leave if the baby is stillborn.

A stillbirth is when the baby is stillborn after the 24th week of pregnancy.

Before the payment is made, you need proof (e.g. a certificate of the stillbirth from the registrar or a certificate or notification of the registration of a stillbirth issued by the attending midwife or doctor).

If a baby is born alive but survives only a moment, it is a live birth and you must apply the live birth rules.

employment interruption

Some breaks between periods of employment do not interrupt a continuous period of employment forSMPpurposes. Employees with an ongoing service contract remain employed without interruption during the following breaks:

• temporary cessation of work - including fixed-term contracts or agency workers
• public holidays
• Illness or injury - the employee can getSMPif the total length of incapacity is 26 weeks or less
• Paternity, parental and adoption leave - if the employee took paternity leave when adopting a child or when a baby was born and he worked for you before and after the break
• Pregnancy - if your employee has not worked for you due to childbirth and has worked for you before and after the break and the break does not last more than 26 weeks

Benefits in kind and contractual benefits

Typically, you can pay part of your employee's earnings in kind (for example, providing room and board, or providing goods or services).

However, you don't have to pay anySMPcomplete.SMPcannot be sacrificed or offset against other benefits, it must be paid out in cash.

All non-remunerated contractual services must continue during the statutory maternity leave. This can be, for example, vouchers for childcare, company cars or mobile phones that are made available to the employee as part of their employment contract.

lump sums

If you decide to pay theSMPAs a lump sum, you and your employee could pay more social security contributions (network cards) than if you paid it on your regular payday.

reinstatement after termination

If your employee has not worked for you during the relevant period because you have made him redundant, he is entitled toSMPas if they had not been fired if:

• They are reinstated because an employment tribunal decides that you wrongly fired them
• They are reinstating them through a statutory grievance process

reinstatement after military service

If the employee did not work for you during the relevant period because he served in the army, but worked for you again within 6 months after his service in the army ended, you may still be able to get himSMP.

The employee must have been with you for at least 26 consecutive weeks by the end of the yearQWto getSMP.

The period of military service does not count towards the 26 weeks.

The period of employment with you before and after military service counts.

commercial disputes or labor disputes

Your employee must have been with you for at least 26 uninterrupted weeks by the end of the yearQW. Do not count the strike time (even if it was one day) as that week does not count as part of the 26 weeks.

Your employee must have been employed for 26 weeks from the start of their employment into the yearQW.

preterm or preterm birth afterQW

If the baby is born prematurely, there are special rules about when your employee must give you a testimony and when you start paying. All other terms and conditions apply.

Your employee could not give you advance notice, but he must give you the date of birth as soon as possible.

Your employee should provide you with a medical certificate (usually a form MATB1 maternity certificate) of the due date and date of birth. You can accept a birth certificate as proof of the date of birth.

Your employee should provide you with the proof within 21 days of the date of birth or as soon as possible if that is not possible and no later than 13 weeks after the start of the date of birthSMPpayment period.

The parental leaveSMPThe payment period begins on the day after the date of birth.

Baby born on or beforeQW

If the baby is born in or beforeQW, there are special rules. The employee must:

• give you medical proof of the due date
• have been employed by you continuously for 26 weeks
• haveSHYhigh enough in therelevant period
• Provide an acceptable notification for the start ofSMP

Your employee should provide you with a medical certificate (usually a maternity certificate MATB1) showing the baby's expected date of birth as well as the actual date of birth.

You can accept any document signed by a doctor or midwife as long as it includes an estimated date of birth.

You can accept a birth certificate as proof of date of birth, but it is not proof of due date.

Your employee should provide you with the evidence within 21 days of starting workSMPPayment term, or as soon as they can, but no later than 13 weeks after the start of paymentSMPpayment period.

If the baby is born before or during theQWthe continuous employment rule is met as if they had 26 weeks of continuous employment with you if the baby had not been born prematurely.

You have to work that outSHYimrelevant periodby using the date of birth instead of thatQW.

If the worker is absent from work due to her pregnancy and the absence lasts into the 4 week period or begins within the 4 week period beginning on Sunday the 4th.

TheSMPThe payment period and maternity leave begin on the day after the first full day of incapacity for work due to pregnancy within the 4-week period. This can mean paying a mix of wages and salariesSMPat the beginning or end of the period.

If you are not sure whether the employee's absence is due to the pregnancy, contact theEmployer Helplinefor advice.

The employee is out of the questionSMP:PAYSettlement Agreements

You need to recalculate your employee'sSHYif all of the following apply:

• herSHYbe below the applicable lower income limit at the endQW
• they received expense allowances or non-cash benefits in the relevant period
• the expenses or benefits in aPay-as-you-earn (PAYE) billing agreement

You need to recalculate theirsSHYif you had to recalculate your employee's earnings because they did not qualify, and both are true:

• part of their income was included in aPAYE Settlement Agreement
• You will receive a retrospective salary increase effective during or before the start of the relevant period that you did not include in the original calculation

If they do not intend to return to work after the birth, they may still be entitled to the wage increase. You need to check the terms of your old employment contract.

wage sacrifice

Does an employee have asalary sacrificeherSHYcalculated on the amount of earnings actually paid during the relevant period.SMPcannot be sacrificed, it must be paid in full.

CalculateSHYforSMP, base the calculation on the income that is subjectnetwork cards. Seecosts and benefitsfor more informations.

Some childcare support programs that you provide and make available to your employees may be exemptPAYtax and class 1network cards.

The value of the care vouchers granted during theMPPcannot be deductedSMP.

Where an employee agrees to acceptvouchers for child careas part of a pay offering theirSMPEligibility is assessed on their gross incomenetwork cardsare payable.

1. Calculate the total amount they are now entitled to.
2. Take everyone awaySMPYou have already paid.
3. Pay any extra chargeSMPdue.

If the newSHYare below the lower income limit that they cannot reachSMP.

If you have not already done so, give this to the employeeSMP1 imagewithin 7 days of the decision.

This must be done within 28 days of the employee's date of absence (or date of birth, if earlier).

Copy the MATB1 Maternity Certificate form and return the original to your employee.

1. 27. April 2020

   Added information on calculating average weekly earnings for employees furloughed under the coronavirus job retention scheme.

2. February 14, 2018

   Updated the information in the Employee Works for Another Employer section.

3. 8. August 2017

   Updated Baby born in or before QW section to clarify average weekly earnings over relevant period.

4. 12. June 2017

   Updated the Employee Works for Another Employer section to clarify when Statutory Maternity Pay is due before and after the birth of a baby.

5. 19 January 2017

   Added a section on underpayments and overpayments.

6. March 18, 2014

   First published.

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