Pay and time off work for parents

Information on all aspects of employment legislation is also usually available from Citizens Advice Bureaux, low pay units, trade unions and other bodies.

A mother or father who is not entitled to SMP or SPP may be entitled to other government help. Please tell them to contact their local Jobcentre Plus office or in Northern Ireland the Jobs and Benefits office.

A Department for Work and Pensions leaflet NI17A - A Guide to Maternity Benefits, SMP and Maternity Allowance is available for mothers who need more information on SMP or on Maternity Allowance (if they cannot get SMP). This also has details of other social security benefits and where to get more information. Visit the website of The Department for Work and Pensions.

Throughout this Helpbook further references to the Advisory, Conciliation and Arbitration Service (Acas) will be referred to as Acas. Please visit the website of Acas and in Northern Ireland reference to Labour Relations Agency (LRA) will be referred to as LRA. Please visit the website of LRA.

Visits to employers from HMRC

From time to time, our officers visit employers to see if their payroll is running smoothly. If we call on you we will ask to see your SMP/SPP records.

Penalties

Legislation provides that employers failing or refusing to operate the SMP scheme correctly can incur penalties. Like those in place for PAYE (Paye As You Earn) and NICs (National Insurance Contributions) these penalties are civil (not criminal).

The penalties cover the following offences:

a refusal by you to allow access to your records or a failure to comply with a formal information notice both of which attract a maximum penalty of £300.00 and £60.00 for each day the failure continues
a failure to keep records could make you liable to a penalty up to a maximum of £3,000.00
if you fraudulently or negligently produce incorrect records the penalty is up to a maximum of £3,000.00
the refusal or repeated refusal or failure by you to pay SMP to your employee or the payment of an incorrect amount of SMP due to either fraud or negligence could make you liable to a penalty up to a maximum of £3,000.00
obtaining either fraudulently or negligently incorrect funding could make you liable to a penalty up to a maximum of £3,000.00
anyone who fraudulently or negligently makes an incorrect statement or declaration to establish entitlement to SMP could be liable to a penalty up to a maximum of £3,000.00.

Where it is considered that a penalty is appropriate it will be imposed by either an Officer of HMRC or the General Commissioners, but in all cases there is a right of appeal.

Any appeal against a penalty raised by an Officer of HMRC will be heard by the General Commissioners. Any appeal against a penalty determined by the General Commissioners (on a question of law or against the amount) will be to the High Court, in Scotland to the Court of Session as the Court of the Exchequer or in Northern Ireland the Court of Appeal (NI).

The outcome of any appeal could see the penalty upheld, varied or dismissed.

Similar penalties apply to the incorrect operation of the SPP scheme.

Maternity/paternity leave and pay

The website of The Department for Business, Enterprise and Regulatory Reform gives information about maternity leave and paternity leave and pay.

The BusinessLink website has interactive information.

Free confidential advice on employment law including paternity leave is available from the website of The Advisory, Conciliation and Arbitration Service (Acas) or telephone 0845 74 74 747.

Statutory Maternity Pay (SMP) and Statutory Paternity Pay (SPP) calculator

There is an easier and quicker way to calculate SMP and SPP.

SMP and SPP calculators are on the internet and on your Employer CD-ROM. This means you no longer need to work out the payments manually. The calculators will tell you:

if your employee is entitled to SMP or SPP
work out how much is due
how much you can get back.

To access the calculators:

visit the Calculators pages
on your CD-ROM, select ‘Calculators’ from the main menu.

There is a also a Learning Zone in your CD-ROM which will take you step-by-step through the process of paying and recovering SMP and SPP.

Employees and employers in Northern Ireland

Arrangements in Northern Ireland are similar to those in Great Britain, but there are differences in detail:

Northern Ireland has it own legislation covering SMP and SPP and maternity and paternity leave schemes
the Incapacity Benefit Branch (IB), Castle Court, Belfast deals with social security claims. For more information visit the website of DSDNI or phone 0289 03 36 000
for Jobcentre Plus in Northern Ireland the reference is the Jobs and Benefits office.
the website of The Department for Employment and Learning, has the publications Maternity Rights - ER16 and Paternity Leave and Pay - ER34 that provides basic information on these rights, including employment protection legislation.

Free confidential advice on employment law is available from the website of Labour Relations Agency (LRA), or phone 0289 03 41 442.

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Terms and conditions used in this Helpbook

General

An employee is a person whose earnings attract a liability for employee’s primary and employer’s secondary Class 1 NICs, or would but for their age or level of their earnings.

Employees include office holders, for example, police officers, Members of Parliament, the judiciary and some company directors.

People who are classed as employed earners for Class 1 NICs liability, for example, agency workers, are also employees.

If you are not sure who is an employee and who is an employer for pay, contact your local HMRC office.

An employer is whoever is liable to pay the employer’s secondary Class 1 NICs, or would but for the employee’s age or the level of their earnings.

Leave

For leave an employee is someone working under a contract of employment. The employer is the person who is employing them under that contract.

Office holders, for example, police officers, Members of Parliament, the judiciary and some company directors are not included as employees under legislation for leave purposes.

If you are not sure who is an employee and who is an employer for leave, visit the website of Acas or in Northern Ireland visit the website of the LRA.

Statutory Maternity Pay (SMP)

This is a legal entitlement to a certain amount of pay to help a mother take time off around the time of birth and lasts for up to 39 weeks. The SMP pay period may start on any day of the week where the mother continues to work beyond the 11th week, before the week the baby is due. She can choose the date she wants her SMP to start. The start date can also be triggered by the birth of the baby or a pregnancy related absence.

Lower Earnings Limit (LEL)

This is the minimum level of earnings that an employee needs to qualify for some benefits. It is also the minimum level that an employee's Average Weekly Earnings (AWE) must reach in a specific period to qualify for SMP/SPP. For 2008-09 the LEL is £90.00 weekly.

Maternity Leave

All employed women are legally entitled to a total of 52 weeks Maternity Leave regardless of their length of service. Women do not need to qualify for SMP to be able to take Maternity Leave. There are two types of Maternity Leave.

Ordinary Maternity Leave (OML) - the first 26 weeks’ maternity leave.
Additional Maternity Leave (AML) - the second 26 weeks’ maternity leave.

There is more information on the website of The Department for Business Enterprise and Regulatory Reform

Statutory Paternity Pay (SPP)

This is a legal entitlement to a certain amount of pay to help a father take time off to care for a baby or support the mother in the first few weeks after the birth.

It is available to employees who are a:

biological father
partner/husband or civil partner who is not the baby’s biological father
mother’s female partner in a same sex couple relationship.

Paternity Leave

This allows a father to take time off to care for a baby or support the mother in the first few weeks after the birth.

It is available to employees who are a:

biological father
partner/husband or civil partner who is not the baby’s biological father
female partner in a same sex couple relationship.

We have used ‘father’, ‘he’, ‘him’ and ‘his’ throughout this Helpbook when talking about people who can get SPP and paternity leave.

They can choose to have one or two whole weeks pay and leave. This must be taken in a single block. It must be taken by the 56th day after the date of birth. If the baby is born early it can be taken any time between the actual date of birth and the end of an eight week period running from the Sunday of the week the baby was originally due.

For examples:

look in the Learning Zone on your Employer CD-ROM
view the information about paternity and adoption on the website of Business Link

New from 6 April 2008

New SMP rates from 6 April 2008

Pay period started on or after 6 April 2008, the first Sunday in April.

First six weeks of payment at 90 per cent of Average Weekly Earnings (AWE), then the lower of:

90 per cent of AWE, or
£117.18.

New SPP rates from 6 April 2008

Pay period started on or after 6 April 2008, the first Sunday in April.

Pay the lower of:

90 per cent of AWE, or
£117.18.

Merger of Employer Helpbooks

The Employer Helpbooks E15 Pay and time off work for parents and the E15(Supplement) Special cases, have now been merged for use from 6 April 2008. The merger of the Helpbooks will provide easier access to information on SMP for employers.

Maternity leave for babies due on or after 6 April 2008

The Government proposes to change the rules on Maternity Leave for women whose babies are due on or after 6 April 2008, so that they are entitled to the benefit of the same non-pay contractual terms and conditions during Additional Maternity Leave as those to which they are entitled to during Ordinary Maternity Leave. More information is available on the website of The Department for Business Enterprise & Regulatory Reform.

In Northern Ireland visit the website of the LRA.

Civil Partners

Under the Civil Partnership Act 2004 same sex couples in the UK have the opportunity to acquire a legal status for their relationship. Couples who register as civil partners will gain a package of rights and responsibilities reflecting those already available to married couples.

Employment Rights

Mothers have a legal right to:

paid time off for ante-natal care
special health and safety protection when they are pregnant, have given birth recently or are breast feeding
protection against unfair treatment or dismissal
return to work after maternity leave.

Treating a woman unfairly on grounds of pregnancy or maternity leave is sex discrimination.

Dismissing someone because she is pregnant, or because they take or seek to take maternity or paternity leave, is automatically ‘unfair dismissal’.

The website of The Department for Business, Enterprise and Regulatory Reform gives information about maternity and paternity leave.

For further information on employment rights, visit the Acas website or in Northern Ireland see the LRA website.

Information on all aspects of employment legislation is also usually available from accountants, Citizens Advice Bureaux, employer organisations, low pay units, trade unions and other private and voluntary sector bodies.

Pay

As you work through the terms and conditions, if you decide that your employee is not entitled to SMP or SPP you will be told to issue a form SMP1 or SPP1. This will explain to your employee why you cannot pay them and what they need to do to get other Government help. It is important that you give them this form as soon as possible to help them with their claim. If your employee disagrees they can ask us to give a formal decision. If this happens we will give you more information at the time.

Leave

If there is disagreement between you and your employee about their entitlement to leave or other employment provisions, you will want to discuss it together first. You will probably also find it helpful to visit the Acas website or in Northern Ireland visit the LRA website or phone 0845 74 74 747. Ultimately, if the dispute continues, your employee may want to take the case to an employment tribunal.

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What can my employee get?

SMP and maternity leave

To work out if your employee is entitled to SMP look at the date the baby is due, not the date the baby is born. To work out how much to pay from 6 April 2008 (this is the first Sunday in April), look at when the pay period started.

If the mother leaves your employment after the start of the 15th week before the week the baby is due you must pay her SMP if she qualifies for it. If SMP is not in payment before she leaves, she does not have to give notice of her intended date to start her SMP. See Further conditions for mothers.

SPP and paternity leave

SPP and paternity leave may be due to someone who is a:

biological father
partner/husband or civil partner who is not the baby’s biological father
female partner in a same sex couple relationship.

When you work out if your employee is entitled - look at both the date the baby is due and the date the baby is born.

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Specific employments

Agency workers

Pay

Agency workers can be treated as employees for PAYE tax and Class 1 NICs. If you have to deduct PAYE tax and Class 1 NICs from the agency worker’s earnings, or would do if they were high enough, then you will have to pay them SMP or SPP if they satisfy the qualifying conditions. If you are not sure whether you have to deduct PAYE tax and Class 1 NICs from the agency worker’s earnings contact your local HMRC office.

The rules on ‘Evidence for entitlement’ apply to agency workers.

You must consider:

has your employee worked for you long enough? See Terms and conditions for mothers and Terms and conditions for fathers
does your employee earn enough? If they are not paid on every pay day, see Employee paid at irregular intervals and Weekly paid employee gets regular payment earlier or later than normal. If they are paid on every pay day, follow the guidance Quick method for calculating Average Weekly Earnings
when should your employee give you dates for pay and leave? Where agency workers are not entitled to maternity or paternity leave they only have to give you 28 days notice of when they want to start being paid SMP or SPP.

Leave

Agency workers who are not employees (that is, not employed under a contract of employment) are not entitled to maternity or paternity leave. If you are not sure whether a worker is employed under a contract of employment, visit the Acas website or in Northern Ireland visit the LRA website.

Casual workers

General

A casual worker is usually someone who works for somebody as and when they are required, but:

they do not have to accept the work that is offered
the person with the work does not have to offer it to them.

Pay

If you have to deduct PAYE tax and Class 1 NICs from the casual worker’s earnings then you will have to pay them SMP or SPP if they satisfy the qualifying conditions. If you are not sure whether you have to deduct PAYE tax and Class 1 NICs from the worker’s earnings contact your local HMRC office.

The rules on Evidence for entitlement, apply to casual workers.

You must consider:

has your employee worked for you long enough? and
does your employee earn enough? If they are not paid on every pay day see Employee paid at irregular intervals and Weekly paid employee gets regular payment earlier or later than normal. If they are paid on every pay day follow the guidance at Terms and condition for mothers
when should your employee give you dates for pay and leave? If the casual worker is not entitled to leave they only have to give you 28 days notice of when they want to start being paid SMP or SPP.

If the casual worker is an employee and entitled to leave, follow the rules at Terms and condition for mothers and Terms and conditions for fathers.

Leave

Casual workers who are not employees (that is, are not employed under a contract of employment) are not entitled to maternity or paternity leave. Casual workers who are employees could be eligible if they satisfy all the qualifying conditions. If you are not sure whether a worker is employed under a contract of employment or not visit the Acas website or phone 0845 74 74 747 or in Northern Ireland visit the LRA website or phone 0289 03 21 442.

Mariners

Pay

Mariners cannot get SMP or SPP if:

they are employed on a foreign-going ship, or
you do not have a place of business in the UK.

Mariners can get SMP or SPP if you have a place of business in the UK and they are on a home-trade ship.

Foreign-going mariners pay a special rate of National Insurance contributions under category letters:

R, T, W, Q, N, O, H, K, V.

There are special rules on ‘Has your employee worked for you long enough?’ for employees who work outside the UK, see Terms and conditions for mothers and Terms and conditions for fathers. All the other rules apply. If you are not sure which of the above applies, contact your local HMRC office.

Leave

Mariners can get maternity or paternity leave if they:

are employed on board a ship registered and maintained under Section 8 of the Merchant Shipping Act 1995, specifying a port in Great Britain or Northern Ireland as the port to which the vessel belongs
do not work wholly outside Great Britain or Northern Ireland
are ordinarily resident in Great Britain or Northern Ireland.

Mariners cannot get maternity or paternity leave if they are the master, or a member of the crew, of a fishing vessel where they are paid only by a share of the profits or gross earnings of the vessel. If you are not sure whether the mariner can get leave or not visit the Acas website or phone 0845 74 74 747 or in Northern Ireland visit the LRA website or phone 0289 03 21 442.

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Forms you may need to use

SMP

Form MAT B1 - Maternity Certificate.

The expectant mother will give you this form to confirm that she is pregnant. You must not pay SMP without it or similar evidence.

The form will be signed by a doctor or midwife and issued after the 20th week of pregnancy.

Form SMP1 - Why I cannot pay you SMP

Use this form to tell your employee she is not entitled to SMP.

Form SMP1 is available from:

Jobcentre Plus offices, or in Northern Ireland the Jobs and Benefits offices - details are in your phone book, or visit the Department for Work and Pensions website In Northern Ireland visit the DSDNI website.

Form SMP2 - SMP record sheet

Use this form to keep a record of SMPs.

SPP

Form SC3 - becoming a parent

Use this form to tell your employee about the terms and conditions relating to SPP. It includes a tear-off statement for your employee to tell you about dates and leave, with a declaration. You must have this declaration before you can make payments.

Form SPP1 - why I cannot pay you SPP

Use this form to tell your employee he is not entitled to SPP.

Form SPP2 - SPP record sheet

Use this form to keep a record of statutory paternity payments and any changes in dates.

All HMRC maternity and paternity forms are available from:

Employer CD-ROM
Orderline

You can use your own version of any of the forms, except form MAT B1.

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Using your own versions of the maternity and paternity forms

You can produce your own computerised or paper versions of these forms. There is no formal approval process.

Form SMP1 Why I cannot pay you SMP

It must include:

your employee’s name, address and National Insurance number (NINO)
the reason why you think you cannot pay SMP
if you have made some payment, but do not think you should make any more
- the total number of weeks you have paid or think you should pay
- the reason why you have not paid
- the date you stopped paying.

It will help your employee if you also include information about what she should do:

if she disagrees with your decision
to claim Maternity Allowance.

Form SMP2 SMP record sheet

It must include:

your employee’s name and NINO
a record of the payment dates and the amount paid
the date the SMP pay period began
a record of any weeks, in the 39 week period when SMP was not paid, with reasons.

You may also find it helpful to record:

the week baby due
the 15th week before the week baby due
the baby's date of birth
the date your employee told you she planned to start her maternity leave
the date she started her maternity leave
if your employee changed her mind, when she told you the new date she wanted to start her leave, and the new date.

Form SC3 becoming a parent, form SC3

It must include your employee’s name and NINO and a declaration that they:

intend to support the mother or care for the child
have or expect to have responsibility for the upbringing of the child
are either:
- the baby’s biological father
- married or in a civil partnership with the baby’s mother
- living with the mother in an enduring family relationship, but are not an immediate relative.

It must also include:

the expected date of birth, and in cases where the baby has been born, the date of birth
the date from which the employee wants to be paid SPP
whether the employee wants to be paid one week or two.

Form SPP1 Why I cannot pay you SPP

It must include:

your employee’s name, address and NINO
the reason why you think you cannot pay SPP
if you have made some payment, but do not think you should make any more:
- the reason why you have not paid
- the date you stopped paying.

It will help your employee if you also include information about what he should do:

if he disagrees with your decision
to claim other Government help.

Form SPP2 SPP record sheet

It must include:

your employee’s name and NINO
a record of the payment dates and the amount paid
the date the SPP pay period began
a record of any unpaid SPP, with reasons.

You may also find it helpful to record:

the week baby due
the 15th week before the week baby due
the baby's date of birth
the date your employee told you he planned to start his paternity leave
if your employee changed his mind, when he told you the new date he wanted to start his leave, and the new date.

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Flowchart - operating the SMP/SPP schemes

Flowchart - operating the SMP/SPP schemes (PDF 93K)

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Terms and conditions for Mothers Evidence for entitlement

Proof of pregnancy

Your employee must produce medical evidence of pregnancy to get SMP. You can allow leave without medical evidence. The medical evidence is usually the form MAT B1 Maternity Certificate. But you can accept any document, signed by a doctor or midwife, that includes the date the baby is due. (The form MAT B1 is signed by a doctor or midwife and is issued no earlier than 20 weeks before the week baby due date.)

Mother does not give medical evidence

Tell the mother that you cannot pay her without the medical evidence and she will need a good reason if she gives it to you too late.

Time limits

The time limit for producing medical evidence for pay is 21 days from the start of the SMP pay period. If there is a good reason for the evidence being produced late you must accept it, provided the evidence is produced by the end of what would be the 13th week of the SMP pay period.

Length of employment

A mother will get Ordinary Maternity Leave and Additional Maternity Leave no matter how long she has worked for you.

To get SMP the mother must be employed by you continuously for at least 26 weeks continuing into the 15th week before the week the baby is due. Count part weeks of employment as full weeks.

Find the date the baby is due in the Important Dates table (PDF 49K), then read across to the latest start date for employment with you. If she started work after that date she does not qualify – see the note below.

Employee has been employed long enough

See Does your employee earn enough?.

Employee has not been employed long enough

Give her form SMP1 Why I cannot pay you SMP. Take a copy of the form MAT B1 Maternity Certificate, and give the original back to her.

What counts as earnings

Earnings do not affect maternity or paternity leave.

Use the amount before deductions such as PAYE, NICs and pension contributions.

Include:

payments which are earnings for Class 1 NICs. (Your employee does not have to have paid NICs.)
all earnings paid in the period, including money earned outside the period, such as holiday pay, overtime, bonuses and any lump sum paid for arrears of pay.
SSP
SMP
SPP
SAP

SMP/SPP depend on your employee’s Average Weekly Earnings (AWE) in a set period. You will need to work out the dates of the set period and how much on average your employee has earned in that period. See the Quick Method to see if they qualify but if you are in any doubt, or your employee disagrees with your decision, you must work through the detailed check starting at Quick Method. Always round up fractions of a penny when you work out 90 per cent of your employee’s AWE. When you work out how much you pay, look at when the pay week began.

For help on screen visit the SMP Calculator pages for an interactive SMP calculator or have a look at your Employer CD-ROM where you will find a calculator and a learning program to help you understand your SMP responsibilities.

When should your employee give you dates for pay and leave?

Leave/pay

Your employee should tell you when she expects to stop work by the Saturday of the 15th week before the week baby due (use the Important Dates tables (PDF 49K)). You must confirm the date in writing including when you expect her back. (See sample letter or on the Employer CD-ROM.)

This notice can also apply for pay.

You should accept any delay in giving notice if the employee has good reason.

Notice can be given:

personally
by someone else
by post, fax or email.

Choosing dates

Your employee has the right to choose when she wants to start maternity pay and leave. But the date cannot be more than 11 weeks before the week baby due. (Use the Important Dates tables (PDF 49K)).

Change of mind

Your employee can change her mind about the start date but should give you 28 days notice of their intended new start date. You should confirm the new date in writing.

Returning after Maternity Leave

If the mother is returning to work from maternity leave earlier than previously planned or later than the previously agreed date she must give you eight weeks notice of when she intends to start work again.

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Employee does not give acceptable notice

Pay

If your employee did not give you 28 days notice and she has not got a good reason for being late (see ‘Choosing dates’ and ‘Change of mind’) give her form SMP1 Why I cannot pay you SMP. Take a copy of the form MAT B1 Maternity Certificate, and give the original back to her.

Leave

You should discuss and agree a suitable start date with your employee. She may have had good reasons why she could not give you proper notice, and if so you should accept them. If not, you are entitled to insist on a notice period which suits you, although you cannot, in any circumstances, delay the start of leave beyond the day following the birth.

Ordinary and Additional Maternity Leave

All employed women are legally entitled to up to one year’s maternity leave. Women do not need to qualify for SMP to be able to take maternity leave. There are two types of maternity leave:

Ordinary Maternity Leave is the first 26 weeks
Additional Maternity Leave is the second 26 weeks.

All employed women are entitled to both, giving a total of 52 weeks maternity leave regardless of their length of service.

There is more information on the following websites:

Agency workers

Agency workers may not have been placed with clients in every week from:

the latest start date for employment with you
up to and including the Sunday of the 15th week before the week baby due.

A week means Sunday to Saturday. Count part weeks as full weeks. Tables showing the week baby due, the latest start date for employment with you and the 15th week before the week baby due are on Important Dates tables (PDF 49K).

If the agency worker was placed with clients by you in every week she will satisfy the employment condition. If she was not placed with clients by you in every week, and particularly in the 15th week before the week baby due, you need to check why not.

She can still get SMP if:

you did not have work to offer her
she did not work because she was on paid leave under the Working Time Regulations
you offered her work and she turned it down because she was sick or pregnant.

If she did not work because she was sick, then to get SMP she must do some more work for a client through you within 26 weeks of her first day of sickness. If she did not work in the 15th week before the week baby due, then to get SMP she must do some more work for a client through you before starting her maternity absence.

Supply teachers, seasonal workers or other sporadic employment

Supply teachers, seasonal workers and other employees who work as and when you need them may not have worked for you in every week from:

the latest start date for employment with you
up to and including the Sunday of the 15th week before the week baby due.

For SMP in this instance a week means Sunday to Saturday, as a week means different things in different contexts. Count part weeks as full weeks. Tables showing the week baby due, the latest start date for employment with you and the 15th week before the week baby due are shown on Important Dates tables (PDF 49K).

If she did work for you in every week she will satisfy the employment condition.

If she did not work for you in every week you need to check why not.

She can still get SMP if she did not work because:

she was on paid leave under the Working Time Regulations, or
you did not have work to offer her.

If you offered her work and she turned it down, she may still be able to get SMP depending on why she turned the work down. Check the relevant paragraph in the section entitled - Has your employee worked for you long enough?

Employee works abroad

Where she works for you outside the UK between:

the latest start date for employment with you
the Sunday of the 15th week before the week baby due.

She can get SMP, if you were liable to pay Class 1 NICs on her earnings throughout that period.

She can still get SMP if you would have been liable to pay Class 1 NICs if her earnings had been higher. Tables showing the week baby due, the latest start date for employment with you and the Sunday of the 15th week before the week baby due are shown on the Important Dates tables (PDF 49K).

If you were not liable to pay Class 1 NICs throughout that period and she worked for you in the European Economic Area, see the list of countries, she may still be able to get SMP, see the paragraph below.

Where she works for you within the European Economic Area from:

the latest start date for employment with you
up to and including the Sunday of the 15th week before the week baby due

she can get SMP if:

she worked for you in the UK in the 15th week before the week baby due
you were liable to pay Class 1 NICs on her earnings for that week, or would have been if her earnings had been higher.

Tables showing the week baby due, the latest start date for employment with you and the 15th week before the week baby due are on Important Dates tables (PDF 49K).

Break in employment because of pregnancy

If the mother is a short term contract or agency worker who did not work for you from:

the latest start date for employment with you
the Sunday of the 15th week before the week baby due

she can still get SMP if she:

was on maternity leave and she worked for you before and after the break
was not working because of a birth, and she worked for you before and after the break, and the break is not more than 26 weeks.

If she has an ongoing contract of service during such a break she would remain continuously employed.

All the other rules apply.

The tables for working out the periods to use are on Important Dates tables (PDF 49K).

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Terms and conditions for fathers When should your employee give you dates for pay and leave?

Declaration of family commitment

Give the father form SC3 Becoming a parent which advises your employee of the terms and conditions relating to SPP and paternity leave.

It also has a tear-off slip for a declaration covering family commitment.

You must not pay SPP without a declaration, but you can allow leave without one.

If you consider that the employee has made a false declaration, you should contact your HMRC office for advice. They can investigate and, if appropriate, consider penalising the employee.

You must not ask for medical evidence of the pregnancy.

Father gives declaration

See the ‘Length of employment’ section below.

Father does not give declaration

Tell the father that you cannot pay him without the declaration and he will need a good reason if he gives it to you late.

Length of employment

The length of time the father must have worked for you to get SPP and paternity leave is split into two.

Step 1

He must work every week from:

the latest start date for employment with you. If he started work after that date he does not qualify - see the note below
up to and including the Sunday of the 15th week before the week baby due.

Step 2

He must continue to work for you in every week from the 15th week before the week baby due right up until the baby is born. If he stops working for you before the baby is born he is not entitled to SPP or paternity leave.

A week, in this instance, means Sunday to Saturday. Count part weeks as full weeks.

Tables showing the week baby due date, the latest start date for employment with you and the 15th week before the week baby due are on Important Dates tables (PDF 49K).

Employee has been employed long enough

See the ‘Quick method’ section.

Employee has not been employed long enough

Pay

Give him form SPP1 Why I cannot pay you SPP. Take a copy of the declaration on form SC3 Becoming a parent, and give the original back to him.

Leave

Tell him that he does not qualify for statutory paternity leave. This does not have to be in writing and there is no special form. You may of course reach an agreement about time off. You may find it helpful to contact Acas or in Northern Ireland contact the LRA.

Time limits

The time limit for producing evidence to get pay is 28 days before the start of payment. If there is a good reason for the evidence being produced late you must accept it, provided the evidence is produced by the end of the SPP pay period.

Leave/pay

Your employee should tell you when he expects to stop work by the Saturday of the 15th week before the week baby due (use the Important Dates tables (PDF 49K)).

This notice can also apply for pay

he must confirm the date of birth
you can ask for this in writing
you are not entitled to ask for evidence of the birth.

You should accept any delay in giving notice if the employee has good reason. Employers should allow sufficient flexibility of notice because of the possible differences between the expected date of birth and the actual date of birth.

Notice can be given:

personally
by someone else
by post, fax or email.

Choosing dates

Your employee has the right to choose when he wants to take leave within a set period. Usually he can choose to take one or two whole weeks leave, but not two separate weeks, any time up to eight weeks after the date of birth or if the baby was born early up to eight weeks after the Sunday of the week in which the baby was due.

Employee does not give acceptable notice

Leave/pay

If your employee did not give you 28 days notice and he has not got a good reason for being late you can delay the start of leave and the pay period until you have had 28 days notice. However, employers should allow sufficient flexibility of notice because of the possible differences between the expected date of birth and the actual date of birth or if the baby was born early up to eight weeks after the Sunday of the week in which the baby was due.

Change of mind

Your employee can change his mind about the dates but should give you 28 days notice of his intended dates. Employers should allow sufficient flexibility of notice because of the possible differences between the expected date of birth and the actual date of birth.

Employee works abroad

The length of time the father must have worked for you to get SPP is split into two.

Step 1

Where he works for you outside the UK from:

the latest start date for employment with you
up to and including the Sunday of the 15th week before the week baby due he can get SPP, if you were liable to pay Class 1 NICs on his earnings throughout that period.

He can still get SPP if you would have been liable to pay Class 1 NICs if his earnings had been higher.

Tables showing the week baby due, the latest start date for employment with you and the Sunday of the 15th week before the week baby due are on the Important Dates tables (PDF 49K).

If you were not liable to pay Class 1 NICs throughout that period and he worked for you in the European Economic Area, see page 42 for the list of countries, he may still be able to get SPP, see the paragraph below.

Where he works for you within the European Economic Area (see the list of the countries) from:

the latest start date for employment with you
up to and including the Sunday of the 15th week before the week baby due.

He can get SPP if:

he worked for you in the UK in the 15th week before the week baby due
you were liable to pay Class 1 NICs on his earnings for that week.

He can still get SPP if you would have been liable to pay Class 1 NICs if his earnings had been higher. Tables showing the week baby due, the latest start date for employment with you and the 15th week before the week baby due are on the Important Dates tables (PDF 49K).

Step 2

To get SPP the father must continue to work for you from the 15th week before the week baby due right up until the baby is born. It does not matter where he works, or whether you are liable to pay Class 1 NICs. All other SPP rules apply.

Agency workers, supply teachers, seasonal workers or other sporadic employment

You may not have placed agency workers with clients in every week.

If the agency worker was placed with clients by you in every week he can get SPP. If he was not placed with clients by you in every week, and particularly in the 15th week before the week baby due, you need to check why not.

If you did not have work to offer him he can still get SPP.

If you offered him work and he turned it down, he may still be able to get SPP.

If he did not work because he was on paid leave under the Working Time Regulations he can get SPP. The leaflet ‘Your guide to the Working Time Regulations’ gives more information and can be obtained from the BERR website.

If he did not work because he was sick, then to get SPP he must do some more work for a client through you within 26 weeks of his first day of sickness.

If he did not work in the 15th week before the week baby due, then to get SPP he must do some more work for a client through you before starting his paternity absence.

Supply teachers, seasonal workers, and other employees who work as and when you need them may not have worked for you in every week.

If your employee worked for you in every week he will have satisfied the employment condition. If he didn’t work for you in every week you need to check why not.

He can still get SPP if:

he did not work because he was on paid leave under the Working Time Regulations
you did not have work to offer him.

If you offered him work and he turned it down, he may still be able to get SPP depending on why he turned the work down. Check the relevant paragraph in the section - Has your employee worked for you long enough?

Leave – general

If there is no contract of employment then agency workers cannot usually get paternity leave.

Supply teachers who work under a contract of employment can get paternity leave.

There are special rules on how long they must have worked for you, see ‘Leave - How long has he worked for you?’ below.

Seasonal workers and other employees who work under a contract of employment as and when you need them usually get paternity leave. There are special rules on how long they must have worked for you, see ‘Leave - How long has he worked for you?’ below.

Leave – How long has he worked for you?

The length of time the father must have worked to get paternity leave is split into two.

Step 1

He may not have worked in every week from:

the latest start date for employment with you
up to and including the Sunday of the 15th week before the week baby due.

Step 2

He may not have continued to work in every week from the 15th week before the week baby due right up until his leave starts.

If he did work for you in every week in Step 1 and Step 2 he can get paternity leave. If he didn’t work for you in every week you need to check why not.

If he did not work because he was sick, on paternity, adoption or parental leave (or for female partner, maternity leave), on a temporary lay-off or on holiday, he can still get paternity leave if the contract continues.

If the contract does not continue, he can still get paternity leave if:

he is sick or injured and is then re-engaged within 26 weeks of the contract being terminated
work ceases temporarily
he is not working but his contract is regarded as continuing for some purposes, by arrangement or custom
he is not working for some other reason.

If you need more information about this please contact Acas or in Northern Ireland contact the LRA or seek independent legal advice.

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Mother’s female partner

Length of time they must have worked for you

The length of time the mother’s female partner must have worked to get SPP and paternity leave is split into two.

Step 1

She must work every week from:

the latest start date for employment with you
up to and including the Sunday of the 15th week before the week baby due.

Step 2

She must continue to work in every week from the 15th week before the week baby due right up until the baby is born.

A week means Sunday to Saturday. Count part weeks, as full weeks. Tables showing week baby due, the latest start date for employment with you and the 15th week before the week baby due are on the Important Dates tables (PDF 49K).

If the mother’s female partner did not work for you during the periods above because of pregnancy, she can still get SPP and paternity leave if she:

was on maternity leave
she worked for you before and after the break.

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Mothers and fathers

Has your employee worked for you long enough?

Reinstatement

Reinstatement after dismissal

If either the mother or father did not work for you during the period you worked out using the Important Dates tables (PDF 49K):

because you dismissed them
they are then reinstated because an employment tribunal decides that you dismissed them unfairly
if you reinstate them as a result of a statutory grievance procedure

they are entitled to SMP or SPP and paternity leave, as if they had not been dismissed.

Reinstatement following service in the Armed Forces

If either the mother or father did not work for you during the period you worked out using the Important Dates Tables (PDF 49K), because they were serving in the Armed Forces and they return to work for you within six months of the end of their service in the Forces under the Reserve Forces (Safeguard of Employment) Regulations, they may still be able to get SMP or SPP and paternity leave.

For SMP the mother must have been continuously employed by you for at least 26 weeks by the end of the 15th week before the week baby due. Do not count the period she served in the Armed Forces as part of the 26 weeks.

To get SPP and paternity leave the length of time father must have worked is split into two.

Step 1

He must have been continuously employed by you up to and including the 15th week before the week baby due. Do not count the period he served in the Armed Forces as part of the 26 weeks.

Step 2

He must continue to work for you right up until the baby is born.

A week, in this instance, means Sunday to Saturday. Count part weeks as full weeks. Tables showing the 15th week before the week baby due are on the Important Dates Tables (PDF 49K).

Break in employment

Break in employment because of trade disputes or industrial action

If either the mother or father did not work for you during the period you worked out using the Important Dates Tables (PDF 49K), because they were on strike, they may still be able to get SMP or SPP and paternity leave.

For SMP the mother must have been continuously employed by you for at least 26 weeks by the end of the 15th week before the week baby due.

Do not count the period she was on strike, even for one day, as this week will not count as part of the 26 weeks.

To get SPP and paternity leave the length of time the father must have worked is split into two.

Step 1

He must have been continuously employed by you up to and including the 15th week before the week baby due. Do not count the period he was on strike as part of the 26 weeks.

Step 2

He must continue to work for you right up until the baby is born.

A week, in this instance, means Sunday to Saturday. Count part weeks as full weeks. Tables showing the 15th week before the week baby due are on the Important Dates Tables (PDF 49K).

Break in employment because of temporary cessation of work

If either the mother or father is a short-term contract or agency worker who did not work for you during the period you worked out using the Important Dates Tables (PDF 49K), because you did not have work to offer them, they can get SMP or SPP and paternity leave. Employees with an ongoing contract of service during such a break would remain continuously employed. All the other rules apply.

Break in employment because of public holidays

If either the mother or father is a short-term contract or agency worker who did not work for you during the period you worked out using the tables on the Important Dates Tables (PDF 49K), because of public holidays, they can get SMP and maternity leave or SPP and paternity leave. All the other rules apply.

Break in employment because of sickness or injury

If either the mother or father is a short-term contract agency worker who did not work for you for the whole of period you worked out using the Important Dates Tables (PDF 49K), because they were sick or injured, they can get SMP or SPP and paternity leave if the total period of incapacity is 26 weeks or less. Employees with an ongoing contract of service during such a break would remain continuously employed. All the other rules apply.

Break in employment because of adoption leave

If either the mother or father is a short-term contract or agency worker who did not work for you during the whole of the period you worked out using the Important Dates Tables (PDF 49K):

because they were on adoption leave
they worked for you before and after the break

they can get SMP or SPP and paternity leave. Employees with an ongoing contract of service during such a break would remain continuously employed.

All the other rules apply.

See the Employer Helpbook E16(2008) Pay and time off work for adoptive parents, for more information about adoption leave.

Break in employment because of paternity and parental leave

If either the mother or father is a short-term contract or agency worker who did not work for you during the whole period you worked out using the Important Dates Tables (PDF 49K):

because they took paternity leave when they were adopting a child or when a baby was born
because they took parental leave, and
they worked for you before and after the break

they can get SMP or SPP and paternity leave. Employees with an ongoing contract of service during such a break would remain continuously employed.

All the other rules apply.

The tables for working out the periods to use are on the Important Dates Tables (PDF 49K).

For more information on parental leave see the Department for Business, Enterprise and Regulatory Reform publication Parental leave - A guide for employers and employees

For Northern Ireland, visit the website of the Department of Employment and Learning, Employment Rights Branch or phone 028 9025 7580.

Change of employer

If you take over a business or part of a business and the Transfer of Undertakings (Protection of Employment) Regulations 2006 apply, then continuity of employment is not broken. The Transfer of Undertakings (Protection of Employment) Regulations 2006 are often referred to as the TUPE Regulations.

The regulations apply when you take over an economic entity (a business, part of a business or a service provision) and take over the contracts of employment of the employees being transferred with the business.

The ‘employee liability information’ which the transferor employer must provide will give the identities of those employees being transferred with the business.

If you are not sure if the Transfer of Undertakings (Protection of Employment) Regulations 2006 apply, visit the website of the Advisory, Conciliation and Arbitration Service (Acas) or in Northern Ireland visit the website of the Labour Relations Agency (LRA) .

If the regulations do not apply continuity of employment may not be broken if:

a teacher in a school maintained by a local education authority moves to another school maintained by the same authority, including maintained schools where the governors of the school, rather than the local education authority, are the teacher’s employer
one corporate body takes over from another as the employer by or under an Act of Parliament
the employer dies and their personal representative or trustees keep the employee on
there is a change in the partners, personal representatives or trustees
the employee moves from one employer to another and at the time of the move the two employers are associated, for example:
- one is controlled by the other either directly or indirect
- both companies are controlled by a third party, either directly or indirectly.

If continuity of employment is not broken the:

mother can get SMP
father can get SPP and paternity leave.

This applies as long as they work for you and the previous employer during the period you worked out using the Important Dates Tables (PDF 49K).

If continuity of employment is broken and:

you take on the business after the start of the 15th week before the week baby due, the previous employer must pay SMP to the mother if she was employed by the previous employer in the 15th week before baby due. The woman is still entitled to 52 weeks maternity leave
you take on the business before the start of the 15th week before the week baby due, the mother cannot get SMP (the woman will be entitled to maternity leave)
you take on the business after the birth of the baby, the previous employer must pay SPP to the father
you take on the business before the birth of the baby, the father cannot get SPP or paternity leave.

All the other rules apply. The tables for working out the periods to use are on the Important Dates Tables (PDF 49K).

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When should your employee give you dates for pay and leave?

Acknowledging your employee’s notice for SMP and leave

You must write to the mother within 28 days of the date she told you when she wants to take her maternity leave, to confirm:

the date she intends to stop work
the date you expect her to return to work.

Use ‘Text A’ if she is entitled to SMP and ‘Text B’ if she is not entitled to SMP.

These letters are available on the Employer CD-ROM.

Text A

As we discussed, you are eligible for 52 weeks maternity leave, made up of 26 weeks Ordinary Maternity Leave and 26 weeks Additional Maternity Leave. Given your chosen start date of [insert date] your maternity leave will end on [insert date].

You are eligible for 39 weeks’ SMP.

Your SMP will be £[insert amount] from [insert date] to [insert date] and £[insert amount] from [insert date] to [insert date].

If you want to change the date your maternity leave starts you must, if at all possible, tell me at least 28 days before your proposed new start date or 28 days before [insert leave starts date] whichever is sooner.

If you decide to return to work before [insert date leave ends] you must give me at least eight weeks’ notice.

If you decide not to return to work you must still give me proper notice. Your decision will not affect your entitlement to SMP.

As your employer I want to make sure that your health and safety as a pregnant mother are protected while you are working, and that you are not exposed to risk. I have already carried out an assessment to identify hazards in our workplace that could be a risk to any new, expectant or breastfeeding mothers.

If you have any questions about any aspect of your maternity pay and leave entitlements please do not hesitate to get in touch with me.

Text B

You are not eligible for SMP but as we have discussed, you are eligible for 52 weeks maternity leave, made up of 26 weeks Ordinary Maternity Leave and 26 weeks Additional Maternity Leave. Given your chosen start date of [insert date] your maternity leave will end on [insert date].

The form SMP1 (enclosed) explains why you do not qualify for SMP. You may however, be, entitled to Maternity Allowance. Go to the Department for Work and Pensions website for more information or if you take this form to the Jobcentre Plus or in Northern Ireland the Jobs and Benefits office at [insert local details from the phone book], they will be able to tell you more.

If you decide to return to work before [insert date leave ends] you must give me at least eight weeks notice.

If you decide not to return to work you must still give me proper notice. Your decision will not affect your entitlement to SMP.

If you have any questions about any aspect of your maternity pay and leave entitlements please do not hesitate to get in touch with me.

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Does your employee earn enough?

How to work out the set period

The ‘set period’ is needed to establish the earnings to be used and the number of days, weeks or months to divide those earnings by. All earnings paid in the 'set period' will be divided by the number of days, weeks or months in that ‘set period’.

Regulations define the 'set period' as the period between:

Date 1 the last normal pay day on, or before the Saturday of the Qualifying Week (QW), this is the 15th week before the week baby due. This pay day will be Date 1 and is the end of the 'set period', and
Date 2 the last normal pay day falling not less than eight weeks before the pay day at Date 1. Date 2 will be the day after this pay day and is the start of the 'set period'.

You should include all the earnings paid on, or after, Date 2, up to and including those paid on Date 1.

The 'set period' ends with the last normal pay day on or before the end of the 15th week before the week baby due and starts with the day after the last normal pay day at least eight weeks before that.

See the examples below on how to work out the 'set period' and AWE correctly.

Example - weekly paid employee

Employee paid every Friday

Date baby due 12 September 2008

15th week before week baby due 25 May 2008 to 31 May 2008

Weekly paid employee (PDF 43K)

The set period is therefore from 5 April 2008 to 30 May 2008

Average Weekly Earnings - Total earnings £860.21 ÷ 8 = £107.52625

Do not round this Average Weekly Earnings figure up or down to whole pence.

Example – monthly paid employee

Employee paid on the last working day of month.

Date baby due 12 September 2008

15th week before week baby due 25 May 2008 to 31 May 2008

Monthly paid employee (PDF 43K)

The set period is therefore 1 April 2008 to 30 May 2008

Average weekly Earnings - Total earnings = £1,409.30 ÷ 2 = £704.65 x 12 = £8,455.80 ÷ 52 = £162.61153

Do not round this Average Weekly Earnings figure up or down to whole pence.

Quick method for calculating AWE

Babies due between 15 July 2007 and 19 July 2008

If your employee always earns less than £87.00 gross a week they will not qualify for SMP or SPP. Go to the ‘Employee does not earn enough’ section below.

Babies due between 20 July 2008 and 18 July 2009

If your employee always earns less than £90.00 gross a week they will not qualify for SMP/SPP. Go to the ‘Employee does not earn enough’ section below.

Pay period starts on or before 5 April 2008

If your employee always earns more than the amounts shown above go to ‘Employee earns enough’ section below.

Pay period starts on or after 6 April 2008

If your employee always earns more than the amounts shown above go to ‘Employee earns enough’ section below.

If your employee sometimes earns more or less than £90.00 a week you must work out their Average Weekly Earnings (AWE). Use the weekly check sheet (PDF 77K) or the monthly check sheet (PDF 59K).

Weekly paid - How to work out AWE

To work out AWE you must:

always use the set period - worked out using the check sheet
only include earnings from the set period.

Employee earns enough

If the amount at 6:

is at least £87.00 gross a week for babies due between 15 July 2007 and 19 July 2008
is at least £90.00 gross a week for babies due between 20 July 2008 and 18 July 2009.

See Terms and conditions for mothers and Terms and conditions for fathers.

Employee does not earn enough

If from the amount at 6 they do not earn enough:

Mothers - give her form SMP1 Why I cannot pay you SMP. Take a copy of the form MAT B1 Maternity Certificate and give the original back to her
Fathers - give him form SPP1 Why I cannot pay you SPP. Take a copy of the declaration on form SC3 Becoming a parent and give the original back to him.

Monthly paid - How to work out AWE

To work out Average Weekly Earnings (AWE) you must:

convert monthly pay into an average weekly amount
always use the set period - worked out using the check sheet
only include earnings from the set period.

Employee earns enough

If the amount at 9:

is at least £87.00 gross a week for babies due between 15 July 2007 and 19 July 2008
is at least £90.00 gross a week for babies due between 20 July 2008 and 18 July 2009

See Terms and conditions for mothers and Terms and conditions for fathers.

Employee does not earn enough

If from the amount at 9 they do not earn enough:

Mothers - give her form SMP1 Why I cannot pay you SMP. Take a copy of the form MAT B1 Maternity Certificate, and give the original back to her
Fathers - give him form SPP1 Why I cannot pay you SPP. Take a copy of the declaration on form SC3 Becoming a parent, and give the original back to him.

Employee paid at irregular intervals

If you pay your employee at irregular intervals because they do not work for you during every pay period, see ‘agency workers, supply teachers, seasonal workers or other sporadic employment’ see Terms and conditions for mothers and Terms and conditions for fathers.

If you do not pay your employees in a regular pay pattern use the check sheet below for employees paid at irregular intervals to work out their AWE.

Check sheet for employees paid at irregular intervals (PDF 67K)

Directors

If the director is contractually paid a regular salary calculate their AWE like any other employee; see Quick method for calculating Average Weekly Earnings. The director may also be paid a bonus or fees by a formal vote. If so, only include this if it is paid in the set period.

If the director is paid by a formal vote, calculate their AWE using the check sheet below. A formal vote usually takes place at the company’s Annual General Meeting and is agreed in the company minutes.

A director who is paid by a formal vote may draw money from the business on a regular basis. Do not include this money when working out the director’s AWE.

Check sheet for directors paid by a formal vote (PDF 9K)

Working out the number of rounded months when there is not a whole number of months in the set period

Weekly paid employee gets regular payment earlier or later than normal

This usually happens when you pay a week's wages early because of a holiday.

Follow Steps 1 to 6 of the weekly check sheet (PDF 77K). At Step 6 divide the figure in Step 5 by the number of weeks’ wages in the payment.

Weekly paid employee without whole number of weeks in the set earnings period

This usually happens when you have to bring your employee’s normal pay day forward because of Bank Holidays at Easter or Christmas.

Follow Steps 1 to 6 of the weekly check sheet (PDF 77K). At Step 6 divide the figure in Step 5 by the number of weeks' wages in the payment.

Agency workers, supply teachers, seasonal workers or other sporadic employment

Employees paid in multiples of a week

Use the weekly check sheet. At Step 6 you must still divide the figure in Step 5 by the number of whole weeks in the set period, even if your employee was not paid for some of the weeks.

Employees paid calendar monthly

Use the monthly check sheet (PDF 59K) to work out their AWE.

Change of employer in the set earnings period

If you:

take over a business between the dates in Steps 5 and 3 (inclusive) of the weekly check sheet (PDF 77K) and the monthly check sheet (PDF 59K)
have worked out that the mother and father have been employed by you and the previous employer long enough to get SMP and SPP, see ‘Change of employer’. You must still add together all their earnings in between the dates in Steps 5 and 3 (inclusive) even where some of them were paid by the previous employer.

Employees with more than one job

Your employee could have more than one job with you or work for you and another employer.

If all the employee’s earnings have to be added together to work out Class 1 NICs they have to be added together to work out the employee’s AWE, and the employee could only get one lot of SMP or SPP.

If Class 1 NICs are worked out separately on the employee’s earnings, then you must work out their AWE separately, and the employee can get more than one lot of SMP or SPP.

For more information on how to work out Class 1 NICs for employees with more than one job see the booklet CWG2(2008) Employer Further Guide to PAYE and NICs.

Overpayment/underpayment of earnings made during the set period

Where an overpayment or underpayment of wages was made within the set period, it is this overpaid or underpaid amount that must be included in the AWE calculation for deciding if SMP/SPP is due.

This may mean an employee is eligible for SMP/SPP even if their AWE would otherwise have been below the Lower Earnings Level (LEL), or they could be excluded where an underpayment of wages means their AWE fall below the LEL. Adjust any overpayment or underpayment of wages in the normal manner and note your wage records accordingly.

Salary sacrifice

Some schemes for childcare support provided by you and made available to your employees may be exempt from PAYE tax and Class 1 NICs.

For the purposes of calculating AWE for SMP/SPP the calculation is based on earnings which are subject to NICs. This means that where an employee is taking a salary sacrifice, for example, Childcare Vouchers, their SMP/SPP entitlement will be assessed on their gross earnings that remain after taking off the value of the Childcare Voucher. No NICs are paid on the vouchers. Further information is available on the treatment of PAYE tax and NICs childcare can be found in Employer Helpbook E18(2008) How to help your employees with childcare (PDF ).

Earnings in set period where pay rise awarded before or during maternity leave

Mothers

You must recalculate SMP AWE to take account of pay rises awarded, or which would have been awarded to a woman had she not been on maternity leave, if:

you awarded a pay rise on or after 6 April 2005, or before that date had granted a pay rise which had not been put into payment by then
the pay rise was effective from anytime between the start of the eight week set period for calculating SMP and the end of the woman's statutory maternity leave. (This is Ordinary Maternity Leave and any Additional Maternity Leave applicable in her case.)

If the effective date of the pay rise falls before the start of the set period but the earnings in the set period at the time SMP was originally calculated had not been adjusted to reflect that pay rise before the end of the set period:

you must re-calculate her AWE to include the pay rise as though it was effective from the beginning of the set period
pay any extra SMP due.

If a pay rise is awarded which on re-calculation means that her earnings are now high enough for her to get SMP when she could not before you should:

work out 90 per cent of her AWE
take away the standard rate of SMP
pay her the difference for six weeks.

If 90 per cent of her AWE is less than the standard rate you may not have to pay her anything. This is because she may have received the balance of the SMP now due as Maternity Allowance from the Jobcentre Plus or in Northern Ireland the Jobs and Benefits office.

However, not all women are entitled to Maternity Allowance, or the Maternity Allowance she got may have been less than the SMP she is now entitled to. You should therefore ask her to get a letter from the Jobcentre Plus or in Northern Ireland the Jobs and Benefits office to confirm how much Maternity Allowance she received.

If your employee gives you a letter from the Jobcentre Plus office or in Northern Ireland the Jobs and Benefits office showing how much Maternity Allowance she got:

work out the total amount of SMP she is entitled to
take away the Maternity Allowance she was paid
take away any SMP you have already paid her
pay her the difference.

She should still benefit from a pay rise even if she does not intend to return to work with you after her maternity leave has ended.

If a pay award is made after she has terminated her employment and the pay rise is backdated into a time when she was working for you or was on maternity leave with you, she may be entitled to benefit from the pay rise. You should check the terms of her old contract of employment with you.

If more than one pay rise has been awarded during the above period you will need to perform separate calculations for each.

For pay rises awarded prior to 6 April 2005

The amending legislation is not retrospective and therefore there is no general requirement on employers to re-calculate SMP. However, legal advice indicates that employers should be advised to consider a specific claim for arrears of SMP that may be due as a result of pay rises awarded in the past.

If the woman makes such a claim then legal advice is that you should consider recalculating the SMP due where a pay rise was awarded or put into payment before 6 April 2005 but was effective from anytime between the start of the eight week set period for calculating SMP and the end of the woman's statutory maternity leave. (This is ordinary and Additional Maternity Leave applicable in her case.)

The time limit for bringing any claim is six months after the last day a woman was employed in the employment in respect of which the claim is made. Where a claim is made the limitation on any arrears (whether the woman is still employed or has left employment but is within time to claim) is six years from the date the claim is made.

This means you are advised to consider a claim for arrears on the following basis:

for former employees a claim must be made within six months of their leaving your employment
for current employees the SMP must have been paid less than six years before she makes her claim

However, if the six year point falls within a woman's SMP pay period the woman will also be entitled to a re-calculation (if she can substantiate her claim). But in these cases she will only be entitled to receive any enhanced payments for those weeks within the SMP pay period where less than six years have passed since she made her claim.

The six years should be calculated from the date the woman asks for a re-calculation.

You are of course only obliged to keep SMP records for three years after the end of the tax year to which they refer. Therefore, if a woman makes a claim in respect of a period for which you do not have necessary records, it is reasonable for you to ask her to provide sufficient evidence to substantiate her claim in order to allow you to re-calculate any SMP due. You are of course entitled to recover any arrears of SMP paid on the basis of such requests in the normal way.

Contact the Employer Helpline if you need further advice.

Fathers

If his entitlement to SPP is less than the standard rate and he gets a pay rise which is backdated into the set period:

you must re-calculate his AWE
pay the extra SPP due.

NHS employees

Some NHS employees whose contracts are split between Strategic Health Authorities and NHS Trusts, as a result of NHS re-organisation, can choose to have all their earnings added together for working out AWE for SMP and SPP purposes.

For further information contact the Employer Helpline.

Employee does not qualify and some of their earnings are included in a PAYE Settlement Agreement

If your employee has AWE of less than:

£87.00 for babies due between 15 July 2007 and 19 July 2008
£90.00 for babies due between 20 July 2008 and 18 July 2009

and they received any expense payments or benefits in kind in the set period, which were included in a PAYE Settlement Agreement you may need to re-calculate their AWE.

If any of these expense payments and benefits in kind would have been liable for Class 1 NICs if they had not been included in the PAYE Settlement Agreement, you must include these expense payments and benefits in kind and re-calculate your employee's AWE.

PAYE Settlement Agreements are a more flexible way of dealing with some expense payments and benefits in kind. Earnings included in a PAYE Settlement Agreement are liable for Class 1B NICs.

For more information on PAYE Settlement Agreements and whether something is liable for Class 1 NICs, see the CWG2(2008) Employer Further Guide to PAYE and NICs.

Some of the employee’s earnings are included in a PAYE Settlement Agreement and SMP is re-calculated to take account of a pay rise

If you had to re-calculate your employee’s earnings because they did not qualify and:

some of their earnings were included in a PAYE Settlement Agreement
they then get a pay rise which means you have to work out your employee’s SMP again. You must re-calculate their AWE see the following paragraph.

If they do not intend to return to work after the birth they may still be entitled to benefit from the pay rise. You should check the terms of their old contract of employment with you.

Re-calculating your employee’s AWE

Step 1

Re-calculate their AWE using the earnings paid in the set period as increased by the pay rise. Do not include any PAYE Settlement Agreement expense payments and benefits in kind at this stage.

If the new AWE amount is at least:

£87.00 for babies due between 15 July 2007 and 19 July 2008
£90.00 for babies due between 20 July 2008 and 18 July 2009

your employee’s earnings are high enough to get SMP/SPP. So:

work out the total amount of SMP/SPP they are now entitled to
take away any SMP/SPP you have already paid them
pay any extra SMP/SPP due.

Your employee may not be entitled to any extra SMP/SPP because their AWE with the pay rise, excluding the PAYE Settlement Agreement earnings, are less than their original earnings. If this is the case, do nothing, your employee may continue to receive the SMP as originally calculated.

If the new AWE are less than the LEL go to Step 2.

Step 2

Re-calculate their AWE using the earnings paid in the set period as increased by the pay rise and include the expense payments and benefits in kind.

If the new AWE amount is at least:

£87.00 for babies due between 15 July 2007 and 19 July 2008 your employee’s earnings are high enough to get SMP/SPP
£90.00 for babies due between 20 July 2008 and 18 July 2009.

So:

work out the total amount of SMP/SPP they are now entitled to
take away any SMP/SPP you have already paid them
pay any extra SMP/SPP due.

If the new AWE are less than the LEL shown above they still cannot get SMP/SPP.

mothers - give her form SMP1 Why I cannot pay you SMP. Take a copy of the form MAT B1 Maternity Certificate, and give the original back to her
fathers - give him form SPP1 Why I cannot pay you SPP. Take a copy of the declaration on form SC3 Becoming a parent, and give the original back to him.

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Further conditions for mothers

Baby born in or before the 15th week before baby due date

If the baby is born in or before the 15th week before the week baby due date, there are special rules for all four of the terms and conditions.

The mother has to:

give you medical evidence of the date the baby is due
have been continuously employed by you for the required period
have AWE high enough in the set period
give you acceptable notice for start of SMP.

Evidence - mothers

Your employee should give you medical evidence of the date the baby was expected to be born as well as the actual date of birth.

This is usually the form MAT B1 Maternity Certificate. But you can accept any document signed by a doctor or midwife as long as a date or expected date is provided. You can also accept a birth certificate as evidence of the date of birth.

Your employee should give you the evidence within 21 days after the date of birth, or as soon as she can if this is not possible.

Continuous employment rule

If the baby is born before or during the 15th week before the week baby due, the continuous employment rule is satisfied if she would have completed 26 weeks continuous employment with you had it not been for the baby's early birth.

Does your employee earn enough?

If your employee has earnings, which vary from week to week, you must work out her AWE. This is because you must pay her 90 per cent of the average weekly amount for the first six weeks. Use the weekly check sheet (PDF 77K) or the monthly check sheet (PDF 59K) but change Steps 1 and 2, as shown on the section Quick method for calculating Average Weekly Earnings.

Step 1

Enter the baby's date of birth.

Step 2

Find the date of the Saturday before the date of birth.

Follow the rest of the steps.

When you decide whether your employee earns enough or not, compare the amount in six (weekly) or nine (monthly) with the amounts shown in the section 'Quick method for calculating Average Weekly Earnings'. The total AWE should be compared to the LEL on the Saturday before the actual date of birth.

When should your employees give you dates for pay and periods of leave?

The mother will not have been able to give you advance notice, but she must tell you the date of birth as soon as possible.

You should confirm when you expect her back, see sample letter on page 19 or on the Employer CD-ROM. If she does not choose to take her full leave entitlement she must give you eight weeks notice of when she intends to start work again.

Start of leave and payment

Maternity leave and the SMP pay period start on the day after the date of birth. Your employee must give you evidence of the date of birth and the date the baby was due.

Baby born before intended start of SMP and leave

If the baby is born before the date the mother intended to start her SMP and leave, there are special rules for when your employee needs to give you evidence and when you start to pay. All the other terms and conditions apply.

Evidence

Your employee should give you medical evidence of the date the baby was due and the date of birth. This is usually the form MAT B1 Maternity Certificate. You can accept a birth certificate as evidence of the date of birth.

Your employee should give you the evidence within 21 days after the date of birth, or as soon as she can if this is not possible.

Start of leave and payment

The maternity leave and SMP pay period starts on the day after the date of birth.

Employee leaves job after the start of the 15th week before week baby due

Your employee cannot get maternity leave if they have left their job but may still qualify for pay.

It does not matter why she left or that she is not coming back – she is entitled to SMP if she satisfies the qualifying conditions.

If your employee starts work for a new employer before her baby is born, you are still liable to pay SMP.

There are special rules for when you start to pay. Find the date of the Sunday of the 11th week before the week baby due using the Important Dates Tables (PDF 49K).

If she leaves before that date the SMP pay period starts on the Sunday of the 11th week before the week baby due unless the baby is born before then, in which case, the SMP pay period will start the day after the date the baby is born.

If she leaves her employment after the start of the 11th week, and before any other event which may trigger her pay, then the SMP pay period starts the day following the day on which she left her employment.

Stillbirth

If the baby is stillborn:

before the 25th week of pregnancy SMP/SPP is not payable and there is no entitlement to maternity or paternity leave. To apply this rule you should treat the 16th week before the week baby due date as being the 25th week of pregnancy
in or after the 25th week of pregnancy but
- more than 15 weeks before the due date, see the paragraph ‘Baby born in or before 15th week before baby due date’
- before the mother intended to start her SMP and leave, see the above paragraph headed ‘Baby born before intended start of SMP and leave’
- after the mother has started her SMP and leave

you should continue to pay SMP.

The father is entitled to SPP and paternity leave if the baby is stillborn in or after the 25th week of pregnancy see ‘Baby born before intended start of SMP and leave’.

If a baby is born alive but later dies pay SMP and SPP as for a live birth. This is the case even if the child survives only for an instant. It is a live birth and you should apply the rules for a live birth.

Pregnancy related absence

If the mother is absent from work because of her pregnancy and the absence continues into or starts within the four week period starting on the Sunday of the 4th week before the week baby due, see the Important Dates Tables (PDF 49K), there are special rules for when her leave starts and when you start to pay.

The SMP pay period and her maternity leave start on the day after the first complete day of absence from work because of her pregnancy within the four week period. This may mean that you have to pay a mixture of wages and SMP at the beginning or end of the period.

If you are not sure whether the employee’s absence is caused by her pregnancy contact your local HMRC office or the Employer Helpline for advice.

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Further conditions for fathers

When should your employee give you dates for pay and leave?

The father will not have been able to give you advance notice, but he must tell you the date of birth as soon as possible.

He must still tell you when he wants to take his leave and pay and whether he wants to take one or two consecutive whole weeks off.

He can choose to take his leave any time between the actual date of birth and the end of an eight week period running from the Sunday of the week the baby was originally due. See the Important Dates Tables (PDF 49K) to find the Sunday of the week the baby was originally due.

Evidence

Your employee should give his declaration of family commitment, confirm the date the baby was due and the date of birth on form SC3 Becoming a parent. You do not need a birth certificate or evidence of pregnancy.

Start of leave and payment

The SPP pay period always starts the day after the last day your employee worked before starting their paternity leave. Your employee must tell you when he wants to stop work, see above.

All the other rules on payment apply.

Baby born before intended start of leave

If the baby is born before the date the father intended to start his leave there are special rules for when your employee needs to give you evidence and when you start to pay.

All the other terms and conditions apply.

Evidence

Your employee should give you his declaration of family commitment, confirm the date the baby was due and the date of birth on form SC3 Becoming a parent. You do not need a birth certificate or evidence of pregnancy.

Your employee should give you the evidence as soon as he can.

Start of leave and payment

The SPP pay period always starts the day after the last day your employee worked before starting their paternity leave. Your employee must tell you when he wants to stop work.

He can choose to take his leave any time between the actual date of birth and the end of an eight week period running from the Sunday of the week the baby was originally due. See the Important Dates Tables (PDF 49K) for the Sunday of the week the baby was originally due.

Your employee cannot get paternity leave if they have left their job but may still qualify for pay, if they left after the baby was born.

All the other rules on payment apply.

Fathers who leave before or during paternity leave

If the father stops work before the date of birth he is not entitled to SPP.

If the father stops work after the date of birth, it does not matter why he left or that he is not coming back – he is entitled to SPP as long as he does not start work for a new employer during the SPP period.

The SPP pay period starts the day after the last day your employee worked. Your employee must have told you whether he wanted one or two weeks pay.

If the employment ends after the baby has been born but before the planned start of the SPP period, it is simplest to treat the SPP period as beginning on the day after the last day of employment. As the employee may choose when to begin their SPP period you may wish to confirm when they wish to start prior to them leaving your employment. But, if they leave to start work for another employer, they are not entitled to SPP from you if they worked for the new employer during the SPP period.

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SMP/SPP

Baby born in or before the 15th week before baby due date

If the baby is born in or before the 15th week before the baby due date, there are special rules for all four of the terms and conditions, and for when you start to pay. (A table showing the 15th week dates is on the Important Dates Tables (PDF 49K).)

If the mother does not meet any of these terms and conditions she is not entitled to SMP and you must give her form SMP1 Why I cannot pay you SMP.

If the father does not meet any of these terms and conditions he is not entitled to SPP and you must give him form SPP1 Why I cannot pay you SPP.

Has your employee worked for you long enough?

A mother will get maternity leave no matter how long she has worked for you. See qualifying conditions.

Use the three steps below to check whether a father has worked for you long enough to qualify for SPP and paternity leave.

Step 1

Find the date the baby was due in the Important Dates Tables (PDF 49K).

Step 2

Read across to the latest start date for employment with you. If they started work after that date they do not qualify.

Step 3

If they started work before the latest start date, read across to the start of the 15th week before the week baby due. If they would still have been employed by you at that date, then they qualify.

Breaks in employment

If either the mother or father have had breaks in the time you have employed them which may affect whether they have worked long enough to qualify for pay and leave:

count part weeks of employment as full weeks
check Has your employee worked for you long enough? to see if you can ignore the breaks.

Tax and NICs on SMP/SPP paid after the employee has left work

For more information about deducting tax and NICs and when to issue form P45, see booklet CWG2(2008) Employers Further Guide to PAYE and NICs.

Start of payment

SMP and SPP are weekly payments. They should be paid on the employee’s next usual pay day on or after the last day of their pay week. SMP and SPP can be paid as part weeks to help you align the payments to their employees normal pay period.

SMP pay weeks start with the first day of the pay period, so that, for example, a SMP pay period which starts on a Wednesday will have pay weeks within the pay period which run from Wednesday to the following Tuesday.

The SMP pay period starts on the day the woman wants it to start and it is intended that this date will be the same day as her maternity leave starts. Both pay and leave might start earlier if:

the baby is born mo

Pay and time off work for parents

Contents

Information

Further help

Visits to employers from HMRC

Penalties

Maternity/paternity leave and pay

Statutory Maternity Pay (SMP) and Statutory Paternity Pay (SPP) calculator

Employees and employers in Northern Ireland

Terms and conditions used in this Helpbook

General

Leave

Statutory Maternity Pay (SMP)

Lower Earnings Limit (LEL)

Maternity Leave

Statutory Paternity Pay (SPP)

Paternity Leave

New from 6 April 2008

Merger of Employer Helpbooks

Maternity leave for babies due on or after 6 April 2008

Civil Partners

Employment Rights

Pay

Leave

What can my employee get?

SMP and maternity leave

SPP and paternity leave

Specific employments

Agency workers

Pay

Leave

Casual workers

General

Pay

Leave

Mariners

Pay

Leave

Forms you may need to use

SMP

Form MAT B1 - Maternity Certificate.

Form SMP1 - Why I cannot pay you SMP

Form SMP2 - SMP record sheet

SPP

Form SC3 - becoming a parent

Form SPP1 - why I cannot pay you SPP

Form SPP2 - SPP record sheet

Using your own versions of the maternity and paternity forms

Form SMP1 Why I cannot pay you SMP

Form SMP2 SMP record sheet

Form SC3 becoming a parent, form SC3

Form SPP1 Why I cannot pay you SPP

Form SPP2 SPP record sheet

Flowchart - operating the SMP/SPP schemes

Terms and conditions for Mothers Evidence for entitlement

Proof of pregnancy

Mother does not give medical evidence

Time limits

Length of employment

Employee has been employed long enough

Employee has not been employed long enough

What counts as earnings

When should your employee give you dates for pay and leave?

Leave/pay

Choosing dates

Change of mind

Returning after Maternity Leave

Employee does not give acceptable notice

Pay

Leave

Ordinary and Additional Maternity Leave

Agency workers

Supply teachers, seasonal workers or other sporadic employment

Employee works abroad

Break in employment because of pregnancy

Terms and conditions for fathers When should your employee give you dates for pay and leave?

Declaration of family commitment

You must not ask for medical evidence of the pregnancy.

Father gives declaration

Father does not give declaration