Understanding the employment rights of your staff is one of the most important responsibilities when it comes to being an employer, including an employee’s right to maternity leave and maternity pay. However, it is also important to understand your own rights, as an employer, when it comes to staff notifying you that they are pregnant, and how and when they must do this, as steps may need to be taken to arrange for temporary cover.
The following guide for employers looks at how to manage maternity leave in the workplace, ensuring that the rights of any eligible members of staff are met, as well as what obligations are on them to inform you as to when they plan to take maternity leave and pay. We also look at the role of a pregnancy and maternity policy, and the importance of this document in letting staff know of their entitlements, as well as their own obligations.
What is the MAT B1 form or MAT B1 certificate?
A MAT B1 form, also known as a MAT B1 certificate, is a document issued free of charge by the doctor or registered midwife of an expectant mother. This provides proof of pregnancy, plus the expected week of childbirth, as required for the purposes of SMP. A midwife should automatically provide an expectant mother with a MAT B1 at the antenatal appointment that takes place after a 20-week scan, although the mother may need to ask for this.
Providing a MAT B1 to an employer is not a mandatory requirement, although where a MAT B1 form is not provided, the worker must provide some other form of acceptable evidence, such as letter on headed paper from their doctor or midwife. If a worker provides you with their MAT B1, you must take a copy for your own records and return the certificate to them.
An expectant mother should give you the MAT B1 form within 21 days of their SMP start date. However, you can agree to accept this later, although you do not have to pay SMP if you have not received proof of the due date 13 weeks after the SMP start date. If you refuse to pay SMP, you will still need to provide the employee with Form SMP1, setting out your decision and the reasons for this, ie; that they failed to give you their MAT B1 certificate, or other acceptable evidence, within 3 weeks of the start of their maternity pay period.
Maternity leave rights
All qualifying members of staff have a statutory right to a total of 52 weeks’ maternity leave. The earliest that an employee can usually start maternity leave is 11 weeks prior to the expected week of childbirth, although leave will automatically start if the employee is off work sick for a pregnancy-related illness in the 4 weeks before their baby is due or, alternatively, the day following the birth if the baby is early.
Throughout this period, once maternity leave begins, the employee’s statutory rights are protected, including a right to accrue annual leave entitlement, as well as to take any unused paid holiday when their maternity leave comes to an end. An employee also has the right to return to their previous job role if they take only 26 weeks’ maternity leave. This period is referred to as ordinary maternity leave, with the second 26-week period referred to as additional maternity leave. If an employee takes additional maternity leave, they will have the right to a similar job if it is no longer possible to give them their old job back, where ‘similar’ means a job on either the same or improved terms and conditions.
Maternity pay rights
Provided they meet the qualifying criteria, including a continuous employment and minimum earnings requirement, an employee will be entitled to statutory maternity pay (SMP) for a period of 39 weeks out of their 52 week’s leave. To qualify for SMP, a worker has to earn at least £123 a week on average and have worked for their employer continuously for at least 26 weeks continuing into the ‘qualifying week’. The qualifying week is classed as the 15th week before the worker’s expected week of childbirth.
SMP is payable at a rate of 90% of the worker’s average weekly pre-tax earnings for the first 6 weeks, followed by either £172.48 or 90% of their average weekly pre-tax earnings, whichever is lower, for the remaining 33 weeks. SMP is payable from when the mother takes her maternity leave, where she will be entitled to pay from a maximum of 11 weeks prior to the week in which her baby is due. However, you can reclaim 92% of a worker’s SMP or, if your business qualifies for small employers’ relief, you can reclaim 103%.
You must pay a worker at least the statutory minimum rate, although you can offer to pay more under any maternity policy. This is referred to as enhanced maternity pay (EMP). However, even where a new and expectant mother is not entitled to SMP or EMP, they will still be entitled to 52 week’s statutory maternity leave, regardless of how long they have worked for you or how much they get paid, provided they are classed as an ‘employee’ under a contract of employment and they provide you with the correct notice.
Employee’s duty to notify
The point at which an expectant mother must notify you of her pregnancy will differ for the purposes of statutory maternity leave and statutory maternity pay:
Statutory maternity leave
To qualify for statutory maternity leave, the expectant mother must tell you at least 15 weeks prior to when her baby is due and when she would like to start her maternity leave. You can ask for this notice in writing, although an employee is entitled to tell you verbally where a request for written notice has not been made.
Having received any notice, either verbally or in writing where required, you must then write to the employee within 28 days confirming their maternity leave start and end dates.
If the employee subsequently decides not to take their full 52 weeks’ leave, they must also give you at least 8 weeks’ notice to change their return to work date.
Statutory maternity pay
To qualify for statutory maternity pay, the expectant mother must again tell you that she wants to stop work to have a baby and the day that she would like her SMP to start. However, the notice period that she must give to you is much shorter than for maternity leave, where a worker is only required to give 28 days’ notice, in writing if you request this, together with proof of pregnancy within 21 days of the SMP start date. However, most women will give you notice of when they would like their SMP to start at the same time as notice for maternity leave, so at least 15 weeks prior to the expected week of childbirth.
Proof of pregnancy could either be a letter from a doctor or registered midwife or, more typically, a MAT B1 certificate, issued by doctors and midwives no more than 20 weeks before the worker’s due date. Having received the MAT B1, you must confirm in writing within 28 days how much SMP the worker will get, as well as when this will start and end.
If the individual is not eligible for SMP, you must issue Form SMP1 within 7 days to notify them of your decision, setting out your reasons for this, for example, because they have not met the continuous employment and/or minimum earnings requirement. You can also refuse to pay SMP if they do not give you the correct notice without a reasonable excuse.
Enhanced maternity pay
When it comes to enhanced maternity pay, you can require the employee to provide notice for maternity leave and EMP at the same time. As with SMP, you can also require the expectant mother to provide both proof of pregnancy and written notice as to when she would like her maternity pay to start. These requirements can be put in place as a prerequisite to enhanced pay, giving you ample time to plan in advance for any temporary cover. The notice and proof of pregnancy requirements can mirror the requirements to qualify for SMP, including provision of a MAT B1 form, or provide for different periods.
What if you suspect an employee is pregnant?
If you suspect that an employee is pregnant but they have not yet told you, there is very little that you can do until they choose to do so. Equally, you must not treat them unfairly because of this, as this could amount to unlawful discrimination by reason of pregnancy.
However, in due course, an employee must provide you with the correct notice to trigger their entitlement to statutory maternity leave and SMP, as well as proof of pregnancy.
Pregnancy and maternity policy
A pregnancy and maternity policy is recommended to set out the procedure to be used by staff when notifying you of any pregnancy, and of their intentions to take maternity leave and pay, including when the MAT B1 form should be provided. This type of policy can also be useful when it comes to informing staff of their rights on maternity, even if these rights are limited to their basic minimum statutory rights as provided for by law.
However, providing staff with enhanced contractual rights, such as a higher rate of maternity pay over a longer period of time, can often help to attract and retain top talent within the workforce. The policy is the ideal way to showcase any enhanced rights that you choose to give, and to let your staff know how valuable they are to you. You could also choose to impose less onerous qualifying conditions for a mother to be eligible for enhanced maternity pay. For example, their contract could include provision for enhanced pay as a day one right, without the need for any qualifying period of service, or removal of the minimum earnings requirement that must be satisfied to be eligible for statutory pay.
Maternity record-keeping
When a new or expectant mother has indicated her intention to take maternity leave and pay, including the provision of a Mat B1 form for the purposes SMP, it is important that you keep records of this. In this way, if any dispute arises at a later date, such as whether or not the employee provided you with the correct notice of their maternity leave and pay within the prescribed timeframe, and what dates that they said they would be taking leave and returning to work, you can refer back to any email or letter provided by them.
You will also need to retain certain records for HMRC. These should include a copy of the MAT B1, together with the date SMP began, your SMP payments and dates of these payments, any SMP that you have reclaimed, and any weeks that you did not pay and why.
You must keep these records for a period of 3 years from the end of the tax year that they relate to, either by using Form SMP2 or by keeping your own records. Form SMP2 is a record sheet that can be used to record details of an employee’s statutory maternity pay.
If an expectant mother is not required to provide you with written notice of maternity leave and pay under the terms of any pregnancy and maternity policy, or where a request for written notice has not otherwise been made, you will need to create a clear and accurate written record if they verbally notify you of their pregnancy. This should include what was said and on what date, including their proposed maternity leave dates and maternity pay period, which should then be filed for future reference. Importantly, an expectant mother ‘must’ provide you with a MAT B1 form, or a letter from her doctor or midwife to be eligible for SMP. They cannot simply tell you what their doctor or midwife has said.
MAT B1 form FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
