In Northern Ireland, a woman’s entitlements in respect of statutory maternity leave (SML) and statutory maternity pay (SMP) are set out in the Employment Rights (NI) Order 1996, the Maternity and Parental Leave etc. Regulations (NI) 1999, as amended, the Statutory Maternity Pay (General) Regulations (NI) 1987, as amended, the Work and Families (NI) Order 2006 and the Sex Discrimination (Amendment of Legislation) Regulations 2008.

The purpose of SML is to allow an employee who has become or is about to become a mother to prepare for the birth of her child, to give birth to her child and to recover from giving birth to her child. SMP ensures that the employee receives financial assistance from her employer while she is unable to work due to pregnancy and/or having to care for her newborn baby.

An employee is entitled to SML upon the commencement of her employment. To qualify for

SML, an employee must notify her employer of the following before the qualifying week, which is the 15^th week before the expectant week of childbirth (EWC):

• The fact that she is pregnant.
• The expected date of the baby’s birth.
• Provide a MATB1 Form.
• Her intended start date for SML.
• Her intentions to claim SMP.

The employer should then notify the employee of the end date of her SML within 28 days of receiving notification. If the employer fails to do this, he is unable to dismiss an employee who returns from her SML late.

A pregnant employee can choose to start her SML at any time from the 11^th week before EWC until the birth itself. However, SML will commence automatically once the employee gives birth or if the employee is absent for a pregnancy-related reason after the beginning of the 4^th week before EWC. The latter can be waived by agreement between employer and employee. If an employee wishes to change the original start date for SML, she must inform her employer of the new date 28 days before the new date or 28 days before the original date (whichever is sooner) unless it is not reasonably practicable for her to do so.

The total available duration of SML is 52 weeks. However, an employee is under no obligation to take this entire period. An employee must take two weeks of compulsory maternity leave (CML) following the birth of her child. If an employer permits an employee to work during this period, they have committed a criminal offence, even if the employee wanted to work during the compulsory period. Entitlement continues in the event of a stillborn child (if the incident occurs after the 24^th week of pregnancy) and upon the death of a new-born.

Usually, the date on which the employee is to return to work is 52 weeks after the start date of her SML, unless it has subsequently been modified by either the employee or employer. If an employee wishes to return to work early, she must give her employer at least eight week’s notice of the change of date. If she wishes to return later, she must inform her employer of the change at least eight weeks before the original return date. If she decides not to return to work at all, she must give notice as required in her employment contract.

Under the 2008 Regulations, an employee is entitled to enjoy all the terms and conditions of her employment for the entire duration of her SML. The exception to this being clauses relating to remuneration. SMP constitutes remuneration during the maternity period. SML contributes to an employee’s period of continuous employment as well as counting towards advantages or payments offered on the basis of seniority or length of service. Although an employee is unable to take annual holiday leave during SML, it does continue to accrue during the maternity period. When the employee returns to work, she is entitled to return to the same job with the same terms and conditions as long as it is reasonably practicable for her to do so.

Reasonable contact between employer and employee is encouraged during SML. To facilitate this, an employee is entitled to work up to 10 keeping-in-touch (KIT) days during her SML without there being any interference with her SMP. An employee cannot be forced to work any KIT days during her SML, nor can she insist that she works a KIT day where her employer does not want her to.

It is unlawful to treat an employee in a detrimental fashion because she took, or sought to take, SML. An employee who is on her period of SML, or who has taken a period of SML can be made redundant, but only if the proper redundancy procedure is followed and the fact that she took SML is not considered as a factor in selecting those to be made redundant. An employer on SML can be dismissed, but only if the reason for dismissal is largely or wholly unrelated to her period of SML.

SMP is payable during the first 39 weeks of SML. To qualify for SMP, an employee must satisfy the following conditions:

• She has at least 26 weeks of continuous employment with the employer extending into the qualifying week.
• Her average weekly earnings are above £113.00 per week and her employer pays Class 1 NIC on her behalf.
• She has provided her employer with a form MATB1 (issued from the 21^st week of pregnancy) as medical evidence of her pregnancy.
• She has given her employer at least 28 days’ notice of the date on which she wants her SMP to commence.

SMP is paid at the following rates:

• 90% of the employee’s average weekly earnings (AWE) for the first 6 weeks.
• £140.98 per week for the remaining 33 weeks or 90% of the employee’s AWE, whichever is the lower.

Employers can recover a percentage of SMP expenses from HMRC through the PAYE and NIC system.

If you have any questions regarding maternity leave in Northern Ireland, please do not hesitate to contact the advice line on
+44 (0)28 9032 5495