New rights to maternity leave and pay apply if your baby is due on or after 1 April 2007, it doesn't matter when your baby is actually born. This factsheet sets out the rights that apply to babies due before and after 1 April 2007

Most of the rights in this factsheet apply to employees. If you are self employed or an agency worker please see our factsheet on atypical workers.

Always check your contract of employment as it may offer you better rights than the law. Your contract can offer you better, but not worse, rights than the statutory minimum.

Maternity Leave

For babies due before 1 April 2007

If you are an employee you are entitled to 26 weeks of Ordinary Maternity Leave (OML), regardless of your length of service or the number of hours you work, providing you give the correct notice, see Notice below. If you have worked for your employer for 26 weeks by the 15 th week before your baby is due you are entitled to a further 26 weeks of Additional Maternity Leave (AML).

For babies due on or after 1 April 2007

If you are an employee you are entitled to 52 weeks maternity leave, regardless of length of service or the number of hours you work, providing you give the correct notice, see Notice below. Your maternity leave will still be divided into 26 weeks OML and 26 weeks AML and your rights will still be different during each period of leave, see our factsheet Rights during Maternity Leave, with different rights to return to work depending on whether you return after OML or AML, see our factsheet After Maternity Leave.

How to work out your weeks

Weeks for the purposes of maternity leave and pay always start on a Sunday. The 'Expected Week of Childbirth' (EWC) is the week in which your baby is due, according to the MATB1 form which you can get from your midwife or GP once you are at least 20 weeks pregnant. To find the 15 th week before the EWC, find the Sunday before the due date (unless your baby is due on a Sunday, in which case use the due date), and count back 15 weeks.

HM Revenue and Customs produces a Help Book for employers with tables of dates to help work out whether you qualify for maternity leave and pay. Your employer can order the Help Book and get help with paying and reclaiming SMP from the Employers Helpline on 08457 143 143.

Maternity Pay

For babies due before 1 April 2007

If you qualify for Statutory Maternity Pay (SMP) or Maternity Allowance (MA) it will be paid for 26 weeks i.e during your OML period. For babies due on or after 1 April 2007 If you qualify for SMP or MA it will be paid for 39 weeks. As you will also qualify for 52 weeks maternity leave, SMP will be paid during your 26 weeks OML and for 13 weeks of your AML.

SMP

If you are paid through Pay As You Earn (PAYE) with tax and National Insurance deducted by your employer you may be entitled to SMP, as long as you meet the qualifying conditions. SMP is paid by your employer in the usual way. All employers can claim SMP back from HM Revenue and Customs. You are entitled to SMP even if you do not intend to return to work and you cannot be asked to repay it. If you receive extra contractual maternity pay you can only be asked to repay it if it is stated in your contract or agreed with your employer.

Service Condition

To qualify for SMP you must have 26 weeks continuous service by the end of the 15th week before your baby is due. This roughly means that as long as you started the job before you became pregnant, and you have worked for at least a day or part of a day in each week since then, you will meet the service requirement.

Maternity weeks are from Sunday to Saturday. Not all breaks from employment will break your continuous service. Breaks where you were on annual leave, sick leave, parental leave or taking time off for dependents will not break your continuous service. If you leave your job or are dismissed after the 15 th week before your baby is due, you will still be entitled to SMP.

Earnings Condition

To qualify for SMP you must also have earned at least £84 per week on average in the calculation period. The calculation period is the eight weeks, if you are paid weekly, up to and including the 15 th week before your baby is due. If you are paid monthly, the calculation period is usually based on the last two monthly payments received before the end of the 15th week before your baby is due.

To work out the average if you are monthly paid, add up the pay on the payslips, divide by the number of months covered (this will usually be two), multiply by 12 and divide that number by 52, to get a weekly average. Pay can include holiday pay, bonuses, overtime, sick pay and any previous periods of SMP but not Maternity Allowance.

Maternity Allowance

If you do not qualify for SMP, you may still be able to get MA. This is paid by the JobCentre Plus directly to you. This factsheet explains how MA is calculated for women who are, or have been, employed. If you are claiming MA as a self employed person, please see our factsheet on Atypical Workers.

Employment Condition

To qualify for MA you must have worked for at least 26 weeks in the 66 weeks (15 months) before your baby is due. The work does not have to be continuous, or for the same employer.

Earnings Condition

You also need to find at least 13 weeks in the 26 weeks of work in which you earned at least £30 per week. The weeks do not have to be continuous or for the same employer and you can add together earnings from more than one job. You should use the 13 weeks where you were paid the most. Pay can include holiday pay, bonuses, overtime, sick pay and any previous periods of SMP but not Maternity Allowance.

To work out your average earnings add together all your earnings in the 13 weeks and divide by 13. Maternity Allowance is paid at a flat rate of £108.85 for the whole period or 90 per cent of your average earnings if that is less. You will receive MA for 26 weeks if your baby is due before 1 April 2007 and for 39 weeks if your baby is due on or after 1 April 2007.

You can claim MA from your local Jobcentre Plus on form MA1. You will need to send your MATB1, 13 weeks' payslips or written proof of your earnings and, if you are employed in the 15 th week before your baby is due, form SMP1 from your employer stating why you are not entitled to SMP. The JobCentre Plus will work out whether you qualify for MA. If you do not qualify for MA they should automatically check whether you are entitled to Incapacity Benefit (IB). IB is not means-tested but depends on whether you have paid or been credited with sufficient NI contributions in the previous 3 years.

If you have two or more jobs

If you are an employee for two or more employers, you will get maternity leave from each job and you do not have to start each period of maternity leave at the same time. If you qualify for SMP from both jobs you will get two lots of SMP. However, if you do not qualify for SMP from job A you cannot get MA for job A if you are already getting SMP for job B and, if you do not qualify for SMP for both jobs, you cannot get two lots of MA (although your calculation of earnings for MA can be based on earnings from two or more jobs).

The start of maternity leave and pay

The earliest you can start your maternity leave and pay is 11 weeks before your baby is due unless you give birth before then. It is up to you to decide when you wish to start your maternity leave and you can work right up to the birth if you wish. Your leave will start on the day stated in your notice.

If your baby is due before 1 April 2007, your maternity pay will usually start on the Sunday after you start your maternity leave. However, if you are off work with a pregnancy-related absence in the four weeks before your baby is due, your employer can insist you start your maternity leave and your leave and pay will start the day after your first day of pregnancy-related absence. If you give birth before you start maternity leave, your leave and pay will start the day after the birth.

If your baby is due on or after 1 April 2007, the start of the maternity pay period has been brought into line with the start of maternity leave. SMP or MA will start on the same day as your maternity leave i.e. the day stated in your notice or, if applicable, the day after your first day of pregnancy-related absence or the day after the birth.

Note: In order to qualify for maternity leave, you should notify your employer as soon as reasonably practicable if you are absent for a pregnancy-related reason in the four weeks before your EWC or if you give birth.

Notice for maternity leave and pay

To get maternity leave you must give your employer notice in or before the 15th week before your baby is due. If your employer asks you to, you must put it in writing. You must tell your employer that you are pregnant, your EWC, and the date you wish to start your OML, see the example letter below. You do not have to give separate notice for OML and AML, your employer should assume that you will take all the leave you are entitled to.

To get SMP you must give your employer your MATB1 form at least 28 days before you wish to start your pay. In practice many women give notice in writing for maternity leave and pay together by the 15 th week before the baby is due.

Once you have given notice your employer has 28 days to write to you confirming the date your maternity leave will end. If you are not entitled to SMP, you must also be given form SMP1. For more information, keep an eye on our website, www.workingfamilies.org.uk for updates.