1 Prior to Maternity Leave

MATERNITY LEAVE AND PAY Manager’s Guide Introduction The rules covering maternity leave and pay are fairly complex; these notes are a straightforward summary of the actions managers need to take. 1 1.1 Prior to Maternity Leave How soon after being informed of a pregnancy does a manager need to take action? There are a number of points that need to be covered when you are informed that a member of staff is pregnant: Under Health and Safety regulations, when you are informed that a member of your staff is pregnant and it is confirmed with a medical statement you should immediately undertake a risk assessment of the working environment and practices. A copy of the Policy is available on the home page of the NUH intranet under Policies and Procedures.  There are a several other issues that you must discuss with your employee and it is likely you will need to have more than one meeting with her. Firstly you will need to discuss: o which maternity leave/pay provisions apply to her (refer to Appendix 1a/1b); o when her maternity leave is likely to start; o Any queries she may have, and give her the “Employee‟s Guide to Maternity Leave and Pay” that can be downloaded from the Childcare Intranet site. o As the employee‟s pregnancy progresses, you will need a further meeting to discuss: a) the paperwork to be completed; your employee must notify you, in writing, of her intention to take maternity leave at least 15 weeks before the expected week of childbirth (EWC). She must also complete and submit the “Notification of Intention to take Maternity Leave” (ML1) form for your information. b) the arrangements for her return to work, eg whether it will be to the 1 same job; part-time work or job share; c) The arrangements for keeping in touch during the maternity leave. These needs to include whether, and how, the employee would like to be informed of Trust vacancies and promotion opportunities during her leave. If changes to the service are being planned, which impact on the employee, it is important to consult with her while she is on leave. d) When you have received the written notification from your employee of her intention to take maternity leave, you must give her written confirmation within 28 days by completing a maternity schedule which should be completed and forwarded to pay services together with the employees MATB1 Certificate. 1.2 If medical advice states that a pregnant employee is unable to do all or part of her job because of pregnancy. Wherever possible, alternative employment should be provided for which normal pay will apply, alternatively it may be possible to make adjustments to the current role. This must be agreed with the employee, and should not affect the status of the employee. Occupational Health advice must be sought at the earliest opportunity, to ensure that the revised role is suitable on health grounds. If suitable alternative employment cannot be found for a pregnant employee, she may have to be suspended on full pay (ie medical suspension) until the date maternity leave is due to start. Advice must be sought from Human Resources before taking such action. It is important to understand that if alternatives are available, but not offered, the employee has the right to make a complaint to an Employment Tribunal. An employee can also complain to an Employment Tribunal if they believe they have been discriminated against, for example if their job role was changed without their agreement. If the employee unreasonably refuses suitable alternative employment, she may still be suspended, but this may result in unpaid leave until the date maternity leave is due to start. Again, HR advice must be sought, before taking such action. 1.3 How does sickness affect entitlement to maternity leave and pay? If the employee is off sick prior to the 4th week before the baby is due, it is treated in the usual way. If a pregnancy-related sickness absence occurs during the 4 weeks before the expected week of childbirth, maternity leave will commence. Occasional days of pregnancy related illness during this period may be disregarded if the employee wants to continue working until the agreed maternity leave commencement date. Sickness that is not pregnancy-related, during the 4 weeks before the expected week of childbirth, is treated in the usual way. 2 1.4 What time off is given for ante-natal care? Women must be allowed reasonable paid time off for ante-natal appointments. These are generally defined as appointments that are advised by the GP or midwife, and may also include relaxation and parent craft classes. After the first appointment evidence of future appointments should be provided. 1.5 Arrangements to cover the maternity leave absence. Options include a fixed term contract; sharing tasks between other staff; a secondment opportunity for internal staff. Equal opportunity considerations need to be taken into account, and an advertisement is usually required. You should contact your link HR contact for advice and information. 1.6 Entitlement to maternity leave and pay for women on a fixed term contract. If staff have one year‟s continuous NHS service at week 11 before their baby is due and their contract runs beyond the 39 week period of statutory maternity leave, they will receive maternity pay in line with permanent staff (including SMP if they are entitled to it – see Appendix 2 for qualifying arrangements). They must return to work to complete their contract or they will have to repay any maternity pay, to which they are not entitled. If staff have one year‟s continuous NHS service at week 11 before their baby is due and their contract expires after 11 weeks before their baby is due, their contract will be extended to enable them to receive maternity pay in line with permanent staff (including SMP if they are entitled to it – see Appendix 2 for qualifying arrangements). Their contract will end at the end of this 39 week period. Absence on maternity leave (paid or unpaid) up to 52 weeks before a further NHS appointment does not constitute a break in service. If staff are entitled to receive SMP but do not have the service detailed in a) and b) above, their contract will be extended to allow them to receive SMP for the full 39 weeks. If staff do not fit a, b or c above, they will leave on the date their contract expires. If the member of staff is a doctor or other employee participating in a planned rotation of appointments as part of an agreed programme of training, they have the right to return to work in the same post or the next planned post and their contract will be extended to enable them to complete the agreed programme of training. Annual leave is accrued as for permanent staff – see paragraph 3.2. 3 a b c d e NB 2 2.1 Maternity Leave Maternity Leave entitlement All women, regardless of length of service or how many hours they work, are entitled to a minimum of 52 weeks maternity leave. Details of leave and pay entitlements in relation to length of service are shown in Appendix 1a to 1b depending on whether they are Agenda for Change or Non Agenda for Change staff. 2.2 When does maternity leave begin? The earliest maternity leave can begin is 11 weeks before the baby is due, however, women may work up to the birth providing they can still do their job and there are no health reasons to prevent it. Maternity leave always starts on a Sunday, however, if their child is born before the 11th week before EWC, or planned maternity leave date, maternity leave will begin on the day of birth. An amended schedule with new dates should be forwarded to pay services. If your member of staff intends to work later than 11 weeks before her baby is due, but you, as her manager, are concerned that she may be putting her own health, or that of the unborn child, at risk, you can arrange an Occupational Health referral. If your member of staff has concerns about any aspects of her work in relation to her pregnancy, she can also talk to Occupational Health. 2.3 If the employee intends to resign, rather than return to work, what happens? A discussion with the employee should take place to ensure that this is what she really wants to do, as in resigning she will lose the right to return to work in a job on the same terms and conditions. If she is clear about her intention to resign, her entitlement to maternity leave and pay is shown in Appendix 1. The effective date of leaving (ie the date to be entered on the “T” form) will be the date that the employee advises her maternity leave will end. As indicated in 2.4 below, annual leave continues to accrue during the maternity leave period. 2.4 Entitlement to annual leave during maternity leave Annual leave will accrue during paid and unpaid maternity leave, however this does not include bank holidays as an employee has no statutory entitlement to be paid for them. 4 It is beneficial for the employee to take their annual leave either before and/or after the maternity leave period and many mothers will request annual leave in the initial weeks to phase their return. Where the maternity leave period runs from one holiday year to another, the employee can only carry over a maximum of one working week. In these circumstances, it is best practice to offer employees the opportunity to add their leave entitlement (accrued to that date and to be accrued during their absence) to the start of their maternity leave so that they do not lose this right. If a woman is unable to take her annual leave due to sickness then the normal carry over provisions of one working week will apply, any other leave remaining is lost. In the event of a situation arising whereby the employee is prevented from taking their leave entitlement due to the needs of the service, the manager should contact a senior member of the HR Department to seek advice. Women who do not intend to return to work after the birth of their baby are entitled to accrue annual leave up to the date that they advise their maternity leave will end. Annual leave must be agreed between the manager and the employee in the usual way. 2.5 What if the employee has a miscarriage? Where an employee has a miscarriage before the 25th week of pregnancy, normal sick leave provisions will apply. 2.6 What happens if the baby is stillborn? Where a baby is stillborn after the 24th week of pregnancy, the employee will be entitled to the same amount of maternity leave and pay as if the baby had been born alive. 2.7 What if the baby is born early? If it occurs after maternity leave starts, entitlement is not affected. If it is before maternity leave is due to start, maternity leave will start immediately. If the baby is born earlier than the 11th week before it is due and has to remain in hospital, you can agree for the employee to split their maternity leave. They must take a minimum period of two weeks leave immediately after the birth, returning to work for a period of 10 (Keeping-in-Touch) days without this affecting their Statutory Maternity Pay then taking the balance of their leave when their baby leaves hospital. 5 Please note: This will not affect their Occupational Maternity Pay but working more than 10 days maximum will affect the amount of Statutory Maternity Pay they receive. Statutory Maternity Pay is paid for a period of 39 weeks and employees will be allowed to work a maximum of 10 days during the SMP period without it affecting their SMP. However, if they work for more than 10 days, this will result in a loss of one weeks‟ Statutory Maternity Pay for each week that includes a working day. 2.8 What if an employee is unwell after her baby is born? A woman cannot receive sick pay until the date she has previously said she will return from maternity leave or, if she has not previously confirmed a date of return, until her full entitlement to maternity leave has expired. 3 Financial Aspects of Maternity Leave The amount of pay that an employee receives during maternity leave is dependent on her length of service. Thus the pay received may be nil; statutory maternity pay (SMP); contractual maternity pay; a combination of contractual maternity pay and statutory maternity pay. 3.1 Contractual Maternity Pay If a woman has 1 year‟s NHS service at week 11 before her baby is due, and intends to return to work following the birth, she will receive 8 weeks at full pay; 18 weeks at half pay. She may also be entitled to statutory maternity pay (SMP) as shown in 3.2.  Continuous employment by NHS Professionals counts as continuous NHS service. A break in service of less than 3 months NHS employment does not count in terms of contractual maternity pay.  By prior agreement, the employee may have this entitlement paid in a different way, eg the amount spread equally over the whole maternity leave period. 3.2 Statutory Maternity Pay (SMP) SMP is a Department of Work & Pensions (DWP) payment and women who fulfil the criteria will receive it for a period of 39 weeks whether or not they intend to return to work after their baby is born. To qualify for SMP women must:  Have been employed by Nottingham University Hospitals Trust, for 26 weeks up to and including the 15th week before the expected week of childbirth - this 15th week is known as the Qualifying Week (QW). 6      Still be pregnant at the beginning of the 11 th week before the expected week of childbirth, or have given birth by that time. Have ceased work for the Trust either wholly or partly as a result of pregnancy or childbirth. Have average earnings* that meet the lower earnings level for National Insurance purposes. Notify their manager at least 15 weeks before the week they commence maternity leave. Provide medical evidence of their expected date of childbirth. This will normally be a Maternity Certificate (MAT B1) although a letter from their doctor or midwife, giving the same information, is acceptable. Not work for their employer more than 10 days during the SMP pay period. (See Keeping-in-Touch days) *(Average earnings for monthly paid staff are based on the actual earnings during the 2 month pay period prior to week 15 (the Qualifying Week) before the baby is due. For weekly paid staff it is actual earnings calculated over the 8 week period prior to the Qualifying Week).  3.3 Keeping-in-Touch Days Employees will be allowed to work a maximum of 10 Keeping-in-Touch (KIT) days without bringing SMP to an end. KIT days must not be undertaken during the two weeks immediately after the birth. The KIT days must be by mutual agreement only. Managers and employees must agree what will actually be undertaken on these days. This can include training or other activities to keep the employee in touch with their role. There is no requirement for employees to undertake this work, nor is there a requirement for managers to provide work. KIT days should be recorded on Summary Sheets on line A with a „K‟ and the number of hours recorded on line B. Payment for hours worked will be in line with the individual‟s hourly rate. 3.4 Does the DWP* pay SMP directly to the employee? No. Providing the employee fulfils the conditions above, SMP is paid by the employer, with 92% of the amount reclaimed via National Insurance Contributions. This is automatically credited to the manager's budget via the payroll system, thereby reducing the gross cost of maternity leave. (*Dept for Work & Pensions formerly the Department for Social Security). 7 3.5 Do incremental dates apply during maternity leave? Yes. Absence on maternity leave (whether paid or unpaid) counts towards normal annual increments. 3.6 What happens to pension contributions? Pension remains payable throughout a period of maternity leave. Contributions are based on pay actually received during the period of paid maternity leave. During unpaid maternity leave contributions are based on the rate of pay immediately prior to unpaid leave. If the employee has a period of unpaid maternity leave, outstanding pension contributions will be deducted from pay when they return to work and deductions will be over the same period as unpaid leave. All women have a right to 52 weeks maternity leave - 26 weeks Ordinary Maternity Leave and 26 weeks Additional Maternity Leave. However, women who do not intend to return to work after they have had their baby may choose to extend their pensionable service for the 39-week statutory pay period and continue to pay pension contributions, by informing Pay Services. If they choose not to do this, their pensionable service will end on the date their last contribution was paid. Any payments made for KIT days will be non-pensionable. 3.7 What happens to authorised car user status? Standard User: There is no entitlement to mileage payments whilst on maternity leave. Regular User: If the regular user criteria are met, they may have a lease car and the regulations relating to that are shown below. However, if a regular user allowance is received, the lump sum allowance is paid for the remainder of the first month of the leave and also for a further 3 months. Payment is made at the rate of 50% for a further 3 months or until the end of maternity leave whichever is sooner. If the employee does not return to work following maternity leave, payment is limited to a six week period. Lease Cars: If the employee is returning to work, they will continue to make their regular payments although official mileage is not claimed. If the employee does less than 2,500 miles within the year, they may be liable to pay more tax. If the employee does not intend to return to work after their maternity leave and wants to terminate the Lease Car agreement, they should speak to the Lease Car Co-ordinator. 8 3.8 What happens to salary deductions for car parking? While on maternity leave it is assumed that the employees will not be parking on site as they will not be in work. Therefore you will need to agree with the employee whether she wants to suspend her payments, and thus any visits to colleagues will be paid at visitor rates. Any changes to deductions should be confirmed with the Car parking administrator who will inform pay services. 3.9 Is there any facility for women to choose to have maternity pay withheld? Yes. If a woman is unsure about whether she will return to work after her baby is born, even if it is her intention to do so, she can request to have her maternity pay withheld and only receive what she would have received had she been leaving. If she returns to work she receives the balance. If she does not return, there is nothing to repay. 3.10 Is there financial assistance to support cover for maternity leave? No. However, where SMP is payable, there are some savings on salary because of the percentage of SMP which is recoverable via National Insurance contributions. Where staff have enough service to qualify for payment of Statutory Maternity Pay the Trust is able to reclaim 92% from National Insurance contributions. Finance will be able to provide information on the savings concerned, and the “reclaimable” element goes back into the departmental budget. If a member of staff is due to commence maternity leave soon after a salary increase, maternity payments may be at the previous rate of remuneration. Maternity pay is calculated based on the average pay for the two month period prior to week 15 before the baby is due. Therefore, if a salary increase occurs after week 15 before the baby is due, the maternity payment made will be at the previous rate of remuneration. 4 4.1 After Maternity Leave Do all women have the right to return to work after maternity leave? Yes. All women have the right to return to their job under their original contract, on no less favourable terms and conditions of service. Women are not allowed to work in the 2 weeks after they have given birth. Although there is no right to fewer hours, there is a legal right to be able to request a variation to working hours for parents of children less than 6 years of age. Therefore, if the employee wishes to return to work on different hours, in the same job, you must facilitate this wherever possible. If this is not possible you must provide written, objectively justifiable reasons, and seek advice from HR before making the final decision. 9 If it is agreed that the employee can return to work on a flexible basis, including changed or reduced hours, for an agreed temporary period, this does not affect her right to return to her job under her original contract at the end of the agreed period. Employees on maternity leave can apply for other posts in the Trust if they wish, and if successful, the new post is the one to which they return. 4.2 Is there a minimum period a woman has to remain at work after returning from maternity leave to retain the benefit of maternity pay? Yes. A woman must return for a minimum of three months otherwise it is treated as not having returned from maternity leave and thus she is liable to repay contractual maternity pay 4.3 When does the employee have to confirm her intention to return to work? An employee who intends to return to work at the end of her full entitlement to maternity leave is not required to give any further notification, and she will have given you an indication of the likely date of return at meetings held with you before she commenced her leave. All employees are entitled to a total of 52 weeks maternity leave made up of 26 weeks Ordinary Maternity Leave (OML) and 26 weeks Additional Maternity Leave (AML). 28 days notice is required if the employee is returning after OML and eight weeks if returning after AML of 39 or 52 weeks 4.4 If an employee confirms her intention to return to work after maternity leave, but fails to do so, what happens? If an employee has given notification of her intention to return to work, and fails to do so she will be liable to repay her contractual maternity pay. However if she decides to return to work for a different NHS employer, she must commence her employment within 12 months of the start of her maternity leave, but if she fails to provide evidence of her new employment, within 15 months from the start of her maternity leave, she will be liable to repay her contractual maternity pay. 4.5 What arrangements have to be made when the employee returns to work? When the employee has confirmed her date of returning to work, a change form (C form) must be completed as soon as possible and sent to Pay Services advising of the date of return and, if appropriate, of any changes to terms and conditions of service, eg working patterns. This form has to be signed by the employee, and acts as an amendment to contract. Please ensure that the C form reaches pay services well in time in order for them to process the staff member’s pay correctly for the month they are returning from maternity leave. 10 You should have a discussion with the employee to bring them up to date with any changes whilst they have been on leave, eg changes in procedures; in the team and so on. If travel arrangements have changed, for example from public transport to a car because of childcare arrangements, the employee may wish to apply for a car parking permit. The allocation of permits cannot be guaranteed. It is also important to be mindful of the psychological well-being of the employee, particularly any difficulties they seem to be experiencing in balancing their work and home life. If the employee is breast-feeding, there should be appropriate private facilities to express and store milk. If you have any further queries please contact Human Resources 11 Appendix 1a ENTITLEMENT TO MATERNITY LEAVE/PAY (INCLUDING STATUTORY MATERNITY PAY) * Length of Service At least 1 year's continuous NHS service at week 11 before EWC AND at least 26 weeks service with the Trust at week 15 before EWC. Entitlement (not returning to work) Maximum 52 weeks leave. If the criteria* is met, they will receive 6 weeks SMP at 9/10th 8 weeks full pay, including SMP; average earnings, followed by 33 18 weeks half pay + standard rate weeks standard rate SMP. SMP (this must not exceed full pay. - if it does, payment is reduced so that the total equals full pay) An additional 13 weeks of SMP. Entitlement (returning to work) A further 13 weeks unpaid. total of 52 weeks leave. A At least 1 year's continuous NHS Maximum 52 weeks leave. service at week 11 EWC but LESS THAN 26 weeks service 8 weeks full pay; 18 weeks half with the Trust at week 15 before pay. EWC. Any further leave is unpaid. They do not have to take the full 52 weeks off. As they are not entitled to SMP from the Trust they may be able to claim Maternity Allowance from the DWP. Less than 1 year's, but more than 26 weeks, continuous NHS service at week 11 before EWC and MORE THAN 26 weeks service with the Trust at week 15 before EWC. Contractual pay equivalent to SMP, (criteria not met for SMP), ie 6 weeks at 9/10th average earnings. May be able to claim Maternity Allowance from the DWP. The Trust will need to be informed of the amount received. If the criteria are met, 6 weeks SMP at 9/10th average earnings; If the criteria* is met, 6 weeks 33 weeks standard rate SMP. SMP at 9/10th average earnings; 33 weeks standard rate SMP. Any further leave is unpaid. They do not have to take the full 52 weeks off. Maximum 52 weeks leave. Less than 26 weeks service with Maximum 52 weeks unpaid leave. No payment from the Trust. May both the NHS and the Trust at They do not have to take the full be eligible to claim Maternity week 15 before EWC. 52 weeks off. Allowance from the DWP. May be eligible to claim Maternity Allowance from the DWP 12 Appendix 1b ENTITLEMENT TO MATERNITY LEAVE/PAY PRIOR TO 1 APRIL 2007 (INCLUDING STATUTORY MATERNITY PAY) * FOR NON-AGENDA FOR CHANGE STAFF Entitlement (not returning to Length of Service Entitlement (returning to work) work) At least 1 year's continuous NHS Maximum 52 weeks leave. If the criteria are met: 6 weeks service at week 11 before EWC SMP at 9/10th average earnings, AND at least 26 weeks service 8 weeks full pay, including SMP; followed by 33 weeks standard with the Trust at week 15 before 14 weeks half pay + standard rate rate SMP. her baby is due. SMP (this must not exceed full pay. - if it does, payment is reduced so that the total equals full pay). A Further 17 weeks SMP. Any further leave is unpaid. She does not have to take the full 52 weeks off. At least 1 year's continuous NHS Maximum 52 weeks leave. service at week 11 before her baby is due but LESS THAN 26 8 weeks full pay; 14 weeks half weeks service with the Trust at pay. week 15 before her baby is due. Any further leave is unpaid. She does not have to take the full 52 weeks off. Contractual pay equivalent to SMP, (she does not fulfil the criteria for SMP), ie 6 weeks at 9/10th average earnings. She may be able to claim Maternity Allowance from the DWP. If she does, she needs to inform the Trust of the amount As she is not entitled to SMP from she receives. the Trust she may be able to claim Maternity Allowance from the DWP. If she fulfils the criteria, 6 weeks SMP at 9/10th average earnings; If the criteria* is met, 6 weeks 33 weeks standard rate SMP. SMP at 9/10th average earnings; 33 weeks standard rate SMP. Any further leave is unpaid. She does not have to take the full 52 weeks off. Maximum 52 weeks leave. Less than 1 year's, but more than 26 weeks, continuous NHS service at week 11 before her baby is due and MORE THAN 26 weeks service with the Trust at week 15 before her baby is due. Less than 26 weeks service with Maximum 52 weeks unpaid leave. She will not get any payment from both the NHS and the Trust at She does not have to take the full the Trust. She may be eligible to week 15 before her baby is due. 52 weeks off. claim to Maternity Allowance from the DWP. She may be eligible to claim Maternity Allowance from the DWP *see 3.2 for eligibility to SMP 13 Appendix 2 Ref Date Address Dear (first name) Re Maternity Leave Congratulations and thank you for telling me about your pregnancy, and the date your baby is due. Following our discussion on (date), I am writing to confirm that in accordance with the Trust‟s Guidelines, it is in order for your Maternity Leave to commence on (date) , as detailed on the attached schedule. Pay Services have been informed that you are taking maternity leave and will make the appropriate financial arrangements. These entitlements to pay are based on the understanding that you are/are not (delete as appropriate) returning to work following maternity leave. May I also remind you that if your baby is born earlier than the date that your Maternity Leave commences, or if you want to make any other changes to your dates, you must inform me as soon as possible as it may effect your pay. During your maternity leave we have agreed that our arrangements for keeping in touch are (insert arrangements eg regular phone calls, meeting 5 weeks before return to work date). I confirm that these arrangements have also included whether, and how, you will be informed of Trust vacancies which may arise while you are on maternity leave, and for which you may wish to apply. In relation to planning your return to work, we will need to know the date your baby is born and whether it is your intention to take your full entitlement to maternity leave. If you decide not to take your full entitlement to maternity leave could I remind you to give me 4 weeks written notice of your intended date of return if taking 26 weeks leave and 8 weeks if returning after 39 or 52 weeks. If you change your mind about returning to work after maternity leave, and decide not to return to your job at Nottingham University Hospitals NHS Trust, you are required to refund the contractual maternity pay received. If you join another Trust, within 12 months of the commencement of your maternity leave, you do not have to repay contractual maternity pay I hope that all goes well, and if you have any queries that haven‟t been covered in the “Employee‟s guide to Maternity Leave and Pay”, please contact me Yours sincerely 14