Do I still need to pay maternity pay if my employee is no longer entitled to work in the United Kingdom?

In most cases, determining if an employee is entitled to maternity leave and pay is fairly straightforward. However, occasionally situations arise where the employee’s entitlement to family leave and pay is not so clear cut, and employers may be confused as to what their obligations are. This article discusses whether an employer must continue to pay statutory maternity pay (SMP) to an employee who is no longer entitled to work in the United Kingdom.

Who is entitled to SMP?

An employee will be entitled to SMP when the following conditions are met:

• They were continuously employed for at least 26 weeks by the end of the qualifying week. This period must include at least one day’s employment in the qualifying week. The qualifying week is the 15^th week before the expected week of childbirth.
• The employee’s normal weekly earnings are not less than the lower earnings limit set by the government each year. For the 2023/24 tax year the lower earnings limit is £123.
• They must still be pregnant 11 weeks before the start of their expected week of childbirth or have already given birth.
• The employee has given you appropriate notice of when they intend their SMP to start. Appropriate notice is at least 28 days’ notice, or where this is not possible, as much notice as is reasonably practicable.
• The employee has supplied you with their MAT B1 certificate from a midwife or doctor confirming the date of their expected week of childbirth. This must be given either before the birth, no more than three weeks after birth, or if there is a good reason for delay, as soon as reasonably practicable.
• The employee has ceased work.

Ceasing entitlement to SMP

An employee does not cease to be entitled to SMP if they resign or their employment is terminated during their maternity leave. Entitlement to SMP will cease where the employee:

• Works for another employer after the child is born. This applies even if the individual remains an employee of the first employer;
• Is detained in custody or prison; or
• Dies.

Therefore, as long as the employee meets the above conditions to qualify for SMP, they will remain entitled to SMP even if their employment is terminated. This includes if their employment is terminated because they are no longer entitled to work in the UK. 

Another important update regarding family leave

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 recently received Royal Assent. This Act enhances protections enjoyed by employees who go on maternity leave. Currently, if an employee on maternity leave is at risk of redundancy, their employer must offer them a suitable alternative position if one exists. This effectively gives them priority over other employees who are also at risk of redundancy. This protection currently only lasts as long as the employee is on maternity leave. Under the new rules, an employee would receive the enhanced protections from the moment they inform their employer they are pregnant, and it would last until 18 months after the birth.

If you have questions about family leave, are unsure what your obligations are towards a pregnant employee, or would like help drafting a maternity leave policy please get in touch via email at employment@warnergoodman.co.uk or call us on 023 8071 7717.