Employers' Duty to Provide Maternity Pay

Employers in England and Wales have specific legal obligations when it comes to providing maternity pay to eligible employees. Statutory maternity pay supports women and birthing parents during pregnancy and after childbirth by guaranteeing a minimum level of income while they are on maternity leave. For employers, understanding these duties, eligibility rules, calculation methods, and record‑keeping requirements is essential to ensure compliance and avoid disputes or tribunal claims. This article explains those duties clearly and comprehensively.

What Is Statutory Maternity Pay?

Statutory Maternity Pay (SMP) is a legal entitlement under UK employment and social security law. It is the minimum paid benefit an eligible employee must receive when they take statutory maternity leave. SMP is paid by the employer through payroll with income tax and National Insurance deducted in the normal way. Employers may also offer more generous maternity pay schemes, but they cannot pay less than the statutory minimum.

Statutory maternity leave - the right to be away from work - is up to 52 weeks although only up to 39 weeks' pay is statutory.

Who Qualifies for Statutory Maternity Pay?

An employee must satisfy several conditions to qualify for SMP:

1. Employment Status

The individual must be an employee rather than a contractor or genuinely self‑employed.

2. Continuity of Service

The employee must have been continuously employed by you for at least 26 weeks up to and including the qualifying week - the 15th week before the expected week of childbirth.

3. Earnings Threshold

They must earn at least the Lower Earnings Limit (currently £125 per week for 2025/26) on average over an 8‑week relevant period leading up to the qualifying week.

4. Notification and Proof

Employees must give you notice of their intention to take SMP and provide medical evidence of the due date, usually a maternity certificate (MATB1) issued by a doctor or midwife, typically around 20 weeks before the due date.

Failing to issue payments when an employee qualifies, or failing to give an SMP1 form explaining why an employee is not entitled, can lead to disputes or claims for unlawful deductions.

How Much Must Employers Pay?

For eligible employees, statutory maternity pay must be paid for up to 39 weeks:

• The first 6 weeks at 90% of the employee's average weekly earnings (AWE) before tax.
• The next 33 weeks at the standard SMP rate (for 2025/26 this is £187.18 per week) or 90% of AWE, whichever is lower.

Employers must deduct income tax and National Insurance contributions from SMP and process it through payroll.

Whether or not an employee returns to work after maternity leave, once they qualify for SMP the employer must pay it for the full 39 weeks.

Employer Duties: Step‑by‑Step

Step 1: Assess Eligibility

When an employee informs you of their pregnancy and intention to take maternity leave:

• Confirm their continuous employment and qualifying week.
• Check average weekly earnings over the relevant period.
• Ensure you obtain valid proof of pregnancy (MATB1) within 21 days of the SMP start date.

If an employee does not meet eligibility, you must provide them with form SMP1 within seven days of deciding they are ineligible. This allows the employee to apply for alternative support such as maternity allowance.

Step 2: Calculate Pay

Use official guidance or the GOV.UK maternity pay calculator to work out:

• The SMP start and end date based on the expected week of childbirth.
• Average weekly earnings.
• Whether any pay rises during the relevant period affect SMP.

You must adjust calculations if the employee receives a pay rise that affects the relevant earnings period.

Step 3: Pay Through Payroll

Process SMP in the normal payroll cycle, deducting tax and NICs. Maintain clear payroll records showing how SMP was calculated and paid.

Step 4: Record‑Keeping and Communication

Keep detailed records of:

• Proof of due date and notifications from the employee.
• SMP payment calculations and dates.
• Copies of SMP1 forms issued if eligibility is denied.

These records support compliance and may be needed if an employee raises a dispute or tribunal claim for underpayment.

Enhanced Maternity Pay and Contractual Obligations

Some employers offer enhanced maternity pay exceeding the statutory minimum as part of a contractual scheme or company policy. An enhanced scheme must always be at least as generous as SMP. The terms of such schemes are a matter of contract and should be clearly documented.

Importantly:

• Enhanced pay does not replace SMP.
• An employer may top up SMP to the level of contractual maternity pay.
• Employers may require conditions, such as a return to work, for enhanced pay - but only if clearly stated and legally enforceable.

Common Issues and Disputes

Incorrect Calculation

Mis‑calculating average weekly earnings or SMP duration can lead to claims for unlawful deduction from wages or tribunal claims. Regular training and up‑to‑date payroll systems help avoid errors.

Notice and Proof Delays

Failing to obtain proof of pregnancy or correct notice can delay SMP payments. Employers should communicate clearly with employees about deadlines.

Multiple Employers

If an employee works for more than one employer, entitlement from each employer depends on qualifying conditions for each role. Employers should confirm whether an employee is receiving SMP elsewhere and adjust payments accordingly.

Legal Protection and Rights

Employees on statutory maternity leave retain key employment rights:

• The right to paid time off for antenatal care.
• Protection from dismissal or detriment due to pregnancy or maternity leave.
• The right to return to their job after leave.

Failure to uphold these rights can result in claims to employment tribunals, which may award compensation for unfair treatment.

Key Takeaways

Employers in England and Wales must meet specific statutory duties to provide maternity pay to eligible employees. This includes determining eligibility based on continuous service and earnings, obtaining required proof, calculating maternity pay correctly, processing payments through payroll, issuing SMP1 forms when necessary, and maintaining accurate records. Enhanced maternity schemes may supplement SMP but must not fall below statutory minimums. Clear policies and careful administration reduce the risk of disputes, claims, or tribunal action, and help ensure fair treatment of staff during maternity leave.