SPM20655 - Statutory Maternity Pay (SMP) - Continuous Employment

Agency workers

If an employee has worked for an agency in each of the 26 weeks into the QW, she satisfies the continuous employment test. A week means Sunday to Saturday. As long as some work was done during any week, it counts as a full week.

There may be complete weeks when a woman is not working for that agency. This does not necessarily mean that continuity of employment is broken.

Continuous Employment Question

Employment is not broken if:

• the agency was unable to offer the woman work in any particular week,
• the agency did offer work, but the woman was not available because of

• • sickness
  • injury
  • pregnancy
  • paternity leave
  • adoption leave
  • parental leave
  • paid holiday.

If there was a complete week (Sunday to Saturday) in which the woman did no work, the agency might regard employment as broken without considering why she was not doing any work for them. If the employee questions the decision, she must explain any periods of absence. The agency should then reconsider the continuous employment question.

No employment in the QW

The employee can still be treated as employed in that week if:

• the agency had no work for her in that week, and
• she was available for work after the QW, if the agency had work for her, and
• she did further work for the agency before starting her maternity absence.

If a woman had intended to go on working during and after the QW but was unable to do so because of sickness, she can still be treated as having worked into the QW if she actually resumes work with the agency within 26 weeks of stopping work.

This may mean that no decision on SMP can be made until she re-registers with the agency after her baby is born.

If a woman has stopped looking for work through a particular agency before the start of the QW, she cannot be entitled to SMP from that agency.

Although an agency worker is not on maternity leave, as such, when she is getting SMP, she must still give notice of the start of date she expects her employer to pay SMP. See SPM20400.