Zero hours contract maternity pay and rights for your staff

Are your staff aware of their employment status regarding maternity rights?

First published on Thursday, Jun 04, 2020

Last updated on Thursday, Mar 14, 2024

Zero hour contract maternity rights depend, in certain instances, on whether someone is an employee or a worker. These two employment statuses come with different rights on matters including:

Worker and employee rights during pregnancy

Antenatal care

Workers are not entitled to paid time off for antenatal meetings. They must arrange any appointments outside their working hours.

Employees, on the other hand, have the right to take 'reasonable' paid time off work for antenatal appointments. This includes travel to their clinic or their GP, and it's without loss of pay.

You can request to see your employee’s appointment card so that you can verify their request. An employee doesn’t have to show you the appointment card for the first appointment related to their pregnancy.

You can also ask to view a certificate that confirms that your employee is, in fact, pregnant.

Always make sure that you update your staff rota when your staff are off for appointments. With absence management software such as BrightHR, it’s easy.

Maternity leave

An employee can take up to 52 weeks (one year) of maternity leave. At the end of the leave, they can usually return to their old job. But if they return after week 26 of maternity leave, they might return to another job but on the same terms.

This is regardless of:

  • How long they've been in that job.
  • How much they earn.
  • How many hours per week they work.

But, they have to be an employee. A worker is not eligible for maternity leave.

To get their maternity leave, your employee must give you the following:

  • Proof of pregnancy.
  • The expected week of the childbirth.
  • The date when they plan to start their maternity leave.

You can ask your employee to give you this information in writing.

For workers, the situation is far less stable.

Workers don’t have the right to maternity leave. They don’t have the right to return to their old job, either. A worker needs to agree any time off with you. When they’re ready to return to work following the childbirth, they need to contact you.

While you might genuinely be unable to offer hours to a worker at the time they plan to return to work, you can’t just refuse to give them the same type of work because of any reason to do with their pregnancy. Doing this would give the worker the chance to make a discrimination claim.

Zero hours contract maternity pay

As we know from earlier, both employees and workers can be on zero hours contracts. If you pay your staff through PAYE and deduct any tax or National Insurance, then both types of staff could qualify for Statutory Maternity Pay (SMP).

But they must meet the following criteria (this bit gets a little confusing):

  • By the end of the 15th week before their expected week of childbirth, you have employed them for 26 weeks.
  • You paid the pregnant employee or worker at least £120 per week (before tax), on average, in the eight weeks up to the final day before the end of the 15th week before their baby is due.
  • You still employ them during their 15th week before the baby is due. This includes them being off sick, or only working a single day or even part of a single day of that week.

How does an employee work out the 15th week before their baby is due?

Okay, calendars out.

Find the Sunday before their baby is due. If the baby is due on a Sunday, then that’s the day. Finger on the Sunday, if you please.

Now count back 15 Sundays. Once you’ve counted 15, this Sunday is the start of the 15th week we keep mentioning. We also call it the qualifying week.

Continuous employment

Keep your calendar out.

Remember the 26 weeks that we mentioned earlier? Well, explain to your staff that once they’ve counted back 15 weeks, they need to count back 26 more weeks from the start of the qualifying week to work out if they’ve been working for you that whole time.

A full Sunday-to-Saturday week off work breaks the continuous employment.

But, annual leave, sick leave, and parental leave don’t break this chain of continuous employment. The 26 weeks are also still in effect if the work dries up because you don’t have any work to offer the employee or worker.

Your staff can ask that you check their entitlement for Statutory Maternity Pay (SMP) with the HMRC Employer’s Helpline.

You can’t simply refuse SMP to your staff. You must give them an SMP1 form, explaining why they don’t qualify for SMP.

Health & safety protection

Both employees and workers have the following health & safety protection:

  • The kind of work and their working conditions must not put their health or their baby's health at risk.
  • You must conduct risk assessments of your workplace.
  • Your risk assessments must include any risks to pregnant women as well as new mothers.
  • You must act reasonably to remove or reduce any risks to all staff.

If you can’t reduce or remove the risks that come with a certain job role, you must offer a suitable alternative to your employee.

No alternative? You can suspend them on full pay for as long as it’s necessary for them to avoid the risks to their health or their baby’s health.

This doesn’t apply to workers.

Employees who work nights also have the right to transfer to day work. They might do this because of advice from their doctor or midwife. You can request a medical certificate before going ahead with this transfer.

Employment status makes a big difference

By now, it should be obvious that employees have far more zero hour contract maternity rights than staff who are workers.

You should always give your staff a written contract and set out in it the terms and conditions of their employment. In these terms, you should clarify whether a person is an employee or a worker.

Since you're here, read our guide to zero hours contract holiday pay, too.

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