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We can give you guidance on what impacts salary sacrifice arrangements have on Statutory Maternity Pay.

Statutory Maternity Pay

Guidance on salary arrangements and more

An employee who is expecting a baby has the right to 26 weeks of ‘Ordinary Maternity Leave’ and 26 weeks ‘Additional Maternity Leave’ – making one year in total. As long as they give you proper notice they can take this no matter how long they’ve worked for you, how many hours they work or how much they’re paid. Whether you have to pay SMP to an expectant employee depends on how long they’ve worked for you and how much they earn.

An employee will have to provide you with evidence of when the baby’s due and give you notice of when they want you to start paying their SMP. If an employee is eligible for SMP, for the first six weeks you must pay them at the rate of 90 per cent of their average weekly earnings. For the next 33 weeks you must pay them the lower of the following:

  • £151.20 for pay weeks commencing on or after 6 April 2020
  • 90 per cent of their average weekly earnings

Criteria for Eligibility

For an employee to be considered eligible for SMP, they must have:

  • Worked for you continuously – full or part-time – for at least 26 weeks up to and into the 15th week before the week the baby’s due (the qualifying week)
  • Average earnings at least equal to the Lower Earnings Limit (LEL) for National Insurance contributions (NICs) in the qualifying week – for 2020-21 this is £118 a week.
  • Given you the right paperwork confirming the pregnancy and sufficient notice of when they would like the SMP payments to start.

When can an employee start her maternity leave?

An employee can choose when to start her maternity leave however this:

  • Cannot start before the 11th week before the week the baby is due. Or will start earlier if the baby is born earlier
  • May start on any day of the week where the employee continues to be employed by you beyond the 11th week before the baby is due
  • Will start the day following the birth if the baby is born before SMP was due to start, or before the 11th week
  • May start earlier if the employee has a pregnancy-related absence in the 4 weeks before the baby is due
  • Must start the day after she leaves her employment if she leaves after the start of the 11th week but before the date she chose.

How does someone qualify for SMP?

To qualify for SMP the employee must:

  • Have been continuously employed by the same employer in the 26 weeks going into the Qualifying Week
  • Still be pregnant at the start of the 11th week before the baby is due, or have had the baby by then
  • Have average weekly earnings which are not less than the lower earnings limit of NICs (currently £118 per week)
  • Give medical evidence (usually on form MATB1 Maternity Certificate)
  • If the employee satisfies all of the qualifying rules, she will qualify for SMP even if she does not intend to return to work for the same employer after the baby is born.

If your employee’s earnings are below the LEL, or they’re not entitled to SMP for some other reason, they may be entitled to Maternity Allowance from the Department for Work and Pensions (DWP). You must provide them with form SMP1 within 7 days of your decision. They must receive this form with 28 days of their pay request or the birth (whichever is earlier).

Key Contact: Lynne Auton
Tel: (0845) 308 2288
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