SPM21130 - Statutory Maternity Pay (SMP) - Changes in Circumstances

Employee in legal custody

‘Legal custody’ means that the person concerned is detained, usually arrested and/or in prison. Entitlement to SMP is not affected if the employee is voluntarily helping the police with their enquiries or if she is released from custody before her MPP starts.

The employer has no liability to pay SMP at all if the employee is in legal custody at any time within the first week of her MPP.

If she is taken into legal custody during her MPP, there is no liability to pay SMP for

• the week in which she is first taken into custody, and
• for any subsequent weeks in the MPP even if the detention in legal custody or sentenced to a term of imprisonment comes to an end before the end of the MPP..

They may be able to claim social security benefits instead, so the employer must give the employee form SMP1 and return her maternity certificate MAT B1, keeping a copy for their payroll records.

It is the employee’s responsibility to tell the employer if they are taken into legal custody. They are in legal custody if they are detained, which usually means they are arrested or in prison.

They are not in legal custody if they are:

• voluntarily helping the police with their enquiries
• out on bail
• serving a suspended sentence