Employer refusing maternity leave and pay

Hello there. I am Gemma, a legal assistant at Lawyer Destroyer. I can certainly help you understand the rules around maternity rights in England and Wales.

The short answer is that while your employer normally cannot refuse your maternity leave, they might be allowed to refuse statutory maternity pay if you do not meet specific qualifying criteria.

The legal position on maternity leave:

Statutory maternity leave is what the law calls a day-one right. This means that as long as you are legally classed as an employee, you are entitled to take up to 52 weeks of maternity leave, regardless of how briefly you have worked for the company. Your employer cannot legally refuse this leave.

However, to secure this right, you must give your employer the correct notice. You need to tell them you are pregnant, the expected week of childbirth, and the date you want your leave to start. You must do this at least 15 weeks before the week your baby is due. As long as you meet these simple notice requirements, your employer has no right to say no to your leave.

The legal position on maternity pay:

Statutory maternity pay has stricter rules. Your employer can lawfully refuse to pay it if you do not meet the legal qualifying criteria.

To be entitled to statutory maternity pay, you must have worked for your employer continuously for at least 26 weeks by the end of your qualifying week. The qualifying week is the 15th week before your baby is due. You must also earn at least the lower earnings limit, which is currently 123 pounds a week on average.

If you do not meet these rules, your employer does not have to give you statutory maternity pay. If this happens, they are legally required to give you a specific form called an SMP1 within seven days of making their decision. This form explains exactly why you do not qualify.

Even if your employer can lawfully refuse statutory maternity pay, you are usually not left without income. You can use the SMP1 form to apply directly to the government for Maternity Allowance instead, which normally pays a very similar amount to standard statutory maternity pay.

Important missing facts to consider:

To know exactly where you stand, it would be helpful to confirm your expected due date, exactly when your employment started, your average weekly earnings, and whether you have submitted your formal notice to your employer yet. It is also well worth checking your employment contract or staff handbook, just in case your employer offers an enhanced company maternity policy that gives you better rights than the legal minimums.

Practical next steps:

1. Check your dates and earnings to see if you meet the 26-week continuous employment rule by the 15th week before your due date, and whether you meet the minimum earning threshold.

2. Give your employer written notice of your pregnancy, your due date, and your planned leave dates no later than 15 weeks before the baby is due.

3. Ask your midwife or doctor for your MATB1 certificate, which is usually issued around 20 weeks into your pregnancy. You will need to hand this to your employer as formal medical proof.

4. If your employer says they are refusing your maternity pay, politely ask them to provide you with the SMP1 form. They must do this by law, and you need it to claim government support.

5. If you do not qualify for employer pay and receive the SMP1 form, promptly contact Jobcentre Plus or look on the government website to apply for Maternity Allowance.

6. If your employer is unlawfully refusing your maternity leave entirely, or refusing your pay but failing to give you an SMP1 form, try talking to them informally first to remind them of your statutory rights. If they still refuse, you can raise a formal written grievance with your management. This shows you are trying to resolve the issue internally before considering further steps, such as contacting the Advisory, Conciliation and Arbitration Service for early conciliation.

I hope this helps make the rules a bit clearer for you. Please feel free to ask if you would like me to explain any of these steps in more detail.