Rights during maternity leave and return to work - Maternity Action (2025)

This page contains information on:

April 2024


The law protects you against unfair treatment and dismissal because of childbirth or because you have taken maternity leave.

This information sheet looks at your rights during maternity leave and on return to work.

Your rights during maternity leave

– All employees have the right to 52 weeks maternity leave with the right to return to work.
– You are entitled to all your contractual terms and conditions during maternity leave, apart from your pay.
– You are entitled to 39 weeks’ maternity pay if you meet the qualifying conditions, see Maternity Pay Questions.
– You have the right to be offered a suitable alternative vacancy, if one exists, if you are at risk of redundancy during maternity or for 18 months from the expected week of childbirth or birth of your baby.
– You have the right to ask for changes to your hours, days or place of work on return from maternity leave.
– You are protected against unfair treatment, unfair dismissal and discrimination because of pregnancy, childbirth and maternity.

This information sheet covers your rights and protection from discrimination during maternity leave and on return to work. For information on protection at work during pregnancy see the information sheet Pregnancy Discrimination.

Rights during maternity leave

Am I entitled to the same rights at work during maternity leave?

You are entitled to your normal contractual terms and conditions, apart from ‘remuneration’ (your wages/salary), during ordinary and additional maternity leave. This means you are entitled to continue to accrue your normal benefits such as paid holiday as if you were at work. See below for more on holidays.

You are not entitled to your normal salary or wages during maternity leave – you should be entitled to some form of maternity pay for the first 39 weeks of your maternity leave. For more information on maternity pay, see Maternity Pay Questions.

You are still entitled to be paid for any payments owing during your maternity leave, for example, for any work done before your leave, any keeping-in-touch days that you work during your leave and any bonuses or other sums that become payable. For more information on working during your maternity leave see: Keeping in touch during leave.

You are entitled to keep other ‘non-cash’ contractual benefits, such as subscriptions, memberships, lunch vouchers and to accrue paid holiday as normal. You are entitled to keep a mobile phone and company car that are provided for personal and business use during your maternity leave.

It is possible that a car allowance is considered to be part of ‘remuneration’ and is probably not payable, however, the law is unclear.

Until March 2016 childcare vouchers were regarded as being a non-cash benefit that continued to be payable throughout maternity leave. Childcare vouchers are normally provided as part of a salary- sacrifice scheme, however, employers are not allowed to make any deductions from Statutory Maternity Pay, apart from tax, National Insurance and a few authorised deductions such as pension contributions or trade union subscriptions.

In Peninsula Business Services Ltd v Donaldson, the Employment Appeal Tribunal decided that it is not discriminatory for an employer to discontinue childcare vouchers during maternity leave. The Employment Appeal Tribunal decided that as childcare vouchers are normally provided by salary-sacrifice they form part of an employee’s pay and an employee is not entitled to them during maternity leave.

Can I take on another job during maternity leave?

During your maternity leave you remain employed by your existing employer and you are bound by any terms of your contract. For instance, you must give the period of notice required by your contract if you decide to leave your job and you should check your contract to see if you have any restrictions on taking on a second job.

Starting a new job after your baby has been born may affect your maternity pay. For more information see Rights for parents with more than one job.

I am not sure if my employer is paying my maternity pay correctly. What can I do?

Your maternity pay should be paid in the same way and at the same time as your salary or wages would be paid. Statutory Maternity Pay (SMP) cannot be replaced by payment in kind or by offering board and lodging. You should not have to collect your pay from work if you were not previously paid in that manner.

If you think that your employer has made a mistake or is not paying your SMP correctly you should talk to your employer. It might help to ask your HR or payroll department to help resolve any maternity pay issues. It is important to resolve pay issues promptly because if your employer has overpaid your maternity pay they can subsequently ask you to repay it.

SMP is paid for the first 6 weeks at 90% of your average earnings, then a standard rate of £184.03 per week (April 2024 – April 2025) or 90% of your average earnings if lower. The last 13 weeks of maternity leave is unpaid leave if you are taking the full year of maternity leave. If you want to check how much your SMP should be you can use this online maternity pay calculator and send the information to your employer: https://www.gov.uk/maternity-paternity-calculator

Your employer can get help and advice about SMP from the HMRC Employer’s Helpline on 0300 200 3200. If your employer does not pay your full SMP or goes into liquidation, you can contact the HMRC Statutory Payments Disputes Team on 0300 322 9422 and ask for payment.

For more information on dealing with maternity pay problems, see Maternity Pay Questions.

I am on a fixed term contract which will during my maternity leave. What happens to my maternity rights?

You remain entitled to your Statutory Maternity Pay (SMP) or Maternity Allowance for the remainder of the 39 week maternity pay period (unless you start a new job in that period). If your employer does not pay the rest of your SMP, you can claim it directly from HMRC Statutory Payments Disputes Team on 0300 322 9422, see Where to go for more help below.

Your maternity leave (the right to return to the same job) will end when your contract ends so any contractual rights, such as company maternity pay and paid holiday, will end when your employment ends unless you and your employer agree otherwise.

You are entitled to any redundancy pay and notice pay that you qualify for, see: www.gov.uk/fixed-term-contracts/employees-rights.

The non-renewal of a fixed-term contract is considered to be a dismissal. You are entitled to ask for written reasons if you are dismissed during pregnancy or maternity leave. If your fixed term contract is not renewed because of pregnancy or maternity leave, you may have a claim for unfair dismissal, automatic unfair dismissal and/or maternity discrimination. See below for more information on maternity discrimination.

Am I entitled to a bonus during maternity leave?

You are entitled to your normal contractual terms and conditions during maternity leave, including bonuses, and you are entitled to be paid it during your maternity leave.

Your employer does not have to pay a non-contractual benefit relating to pay, such as a discretionary bonus, during maternity leave. However, you are entitled to a non-contractual bonus for the two week compulsory maternity leave period and for the portion of a bonus that related to any period when you were not on maternity leave.

Am I entitled to a pay rise while I am on maternity leave?

You are entitled to the benefit of any pay rise that you would have received had you not been on maternity leave. However, during maternity leave you are not entitled to your normal ‘remuneration’ (salary or wages). If all other staff are awarded a pay rise you should also get the benefit of this during maternity leave if you are receiving any occupational maternity pay or other benefits linked to salary. On return to work your pay must reflect the pay rise. Any increase in occupational maternity pay will normally take effect from the date of the pay rise but you should check your employer’s maternity policy for the terms and conditions as it is a benefit provided by your employer

If you get a pay rise which is effective from anytime between the start of the calculation period for SMP (8 weeks before the 15th week before your expected week of childbirth) and the end of your maternity leave, your employer must re-calculate your average earnings and pay you any extra SMP you are entitled to. This includes any increase in your pay, such as an annual increase, promotion or re-grading.

You can show your employer the following Government guidance which states:

A pay rise must not be withheld because of maternity leave.

You must recalculate the average weekly earnings (AWE) to take account of pay rises awarded, or that would have been awarded had your employee not been on maternity leave.

https://www.gov.uk/guidance/statutory-maternity-pay-employee-circumstances-that-affect-payment

A pay rise will usually only lead to an increase in your SMP in the first 6 weeks in which your SMP is based on your average weekly earnings unless your flat rate SMP was below £184.03 per week.

Your employer can get help with re-calculating your SMP from the HMRC Employer’s Helpline on 0300 200 3200.

If your employer refuses to recalculate your SMP following a pay rise you can contact HMRC Statutory Payments Disputes Team on 0300 322 9422. They will calculate any additional SMP owing and order your employer to pay it.

If you are receiving Maternity Allowance but you would qualify for SMP after receiving a pay rise, you should ask your employer to recalculate your average earnings as you are entitled to benefit from a pay rise. This applies even if you do not intend to return to work.

For more information on maternity pay, see Maternity Pay Questions

Holidays and maternity leave

Do I accrue paid holiday during maternity leave?

Yes, you continue to accrue (build up) your paid holiday during your maternity leave as if you were still at work. It is up to you to decide when you wish to take your paid holiday and you should agree it with your employer in the usual way.

All workers, including agency, casual and zero hours’ workers, are entitled to a minimum of 28 days’ paid holiday per year (pro-rata if you work part-time) under the Working Time Regulations 1998: https://www.gov.uk/holiday-entitlement-rights This is equivalent to 5.6 weeks paid holiday per year and can include paid Bank Holidays. You must be allowed to take the time off each year as this is a health and safety measure.

However, you will only continue to accrue paid holiday if you are classed as an employee. You must be an employee to qualify for maternity leave(with the right to return to the same job at the end of the leave and to retain contractual rights during that period). If you are an agency worker, see our information sheet: Maternity and parental rights for agency workers If you work on a zero hours contract, see our information sheet: Zero-hours contracts-maternity and parental rights

I work in a school, am I entitled to accrued holiday when I return from maternity leave?

All employees have a statutory (legal) right to 28 days paid holiday per year (pro rata if you are part-time). For teachers and school staff this will usually be an academic year and the contracts of most teachers and school staff will state that your holidays must be taken during school holidays (you should check your contract). This means your entitlement to accrued holiday will depend when your maternity leave starts and ends.

You need to calculate the number of school holidays you have taken before and after your leave. If these total less than 28 days, you are owed accrued holiday, for example,

a) Maternity leave begins January 1st and ends July 31st – no holiday is owed as the school holidays before and after the maternity leave total more than 28 days in the same academic year.

b) Maternity leave begins January 1st and ends September 30th – the half term holiday in October plus the Christmas break before the maternity leave total less than 28 days so you will be owed some accrued holiday but this is likely to be covered by paid time off before your maternity leave began and the school holidays in the next academic year after your maternity leave ends. In this example, you may want to consider ending your maternity leave before the school summer holiday in order to benefit from paid holiday but note that you will need to return to work when school starts in September.

In most cases your entitlement to accrued annual leave will be offset against periods of school closure in the academic years before and/or after your maternity leave.

You are only entitled to outstanding holiday pay if you are resigning. If you have had occupational maternity pay that is subject to a return to work requirement, your employer may seek to offset any holiday pay that is owed to you against any maternity pay that you owe them.

Note: if you do not want to take the full 52 weeks of maternity leave or you want to return to work early to benefit from some paid school holiday, you must give at least 8 weeks’ notice to return to work early. Your contract may allow you to give shorter notice.

If your contract does not require you to take your annual leave in the school holidays, you are entitled to accrue your paid holiday as if you were at work and to take your holiday in accordance with your contract – see questions below.

You should speak to your union rep or your union’s legal team if you are refused paid holiday.

What happens to my holiday entitlement if I go part-time after maternity leave?

Your holiday entitlement is based on your current contract of employment. If you are reducing your hours of work after returning to work, e.g. going part-time, your new contract will usually start at the end of your maternity leave unless you and your employer agree otherwise. This means that your holiday entitlement will be reduced pro rata from the date of your return to work. This can often mean that you will have a lot of annual leave to use after returning part-time so it is a good idea to talk to your employer about when you will take it.

Example

Sue was working full-time up to the start of her maternity leave. She took 52 weeks maternity leave and was entitled to 30 days annual leave which she continued to accrue during her maternity leave. She returned to work three days a week at the end of her maternity leave and it was agreed that her part-time hours would start at the end of her maternity leave. Sue had 30 days paid holiday to take. She could ask her employer to take a further 10 weeks’ holiday (taken at three days per week) or she could give notice to end her maternity leave early so that she takes the last month (using 30 days’ holiday) as paid holiday.

I will not be able to take all of my holiday because my maternity leave ends shortly before the end of the annual leave year at my work. Will I lose it?

It is very important to discuss your plans for maternity leave and annual leave with your employer and give your employer as much notice as possible. If you have accrued a lot of paid holiday by the end of your maternity leave you will need to arrange with your employer when you can take it. You could give notice to end your maternity leave early, if you wish, and take your paid holiday immediately afterwards. You must give at least 8 weeks’ notice to end your maternity leave early and you must agree your annual leave with your employer in the usual way.

Your employer can refuse annual leave where it coincides with a busy time of year or a lot of other employees are taking leave at the same time but they should not refuse to allow you to take annual leave because you are going to take maternity leave or you have been absent on maternity leave, as that may be maternity discrimination.

You should check your contract or Staff Handbook to see when your holiday year runs from e.g. January to December 2021 or April 2021 to March 2024. You should also check the maximum number of days’ holiday you can carry forward to the next leave year.

Paid annual leave and maternity leave are two different types of leave and you are legally entitled to both. If you are not able to take your statutory minimum of 28 days’ paid holiday within the holiday year because your maternity leave overlaps your holiday year, you must be allowed to carry it forward and take it at another time, see www.gov.uk/holiday-entitlement-rights/calculate-leave-entitlement. Any additional contractual entitlement to holiday pay (over and above the 28 day legal minimum) must be taken in line with your contract so it is important to plan it in advance with your employer and try to come to an agreement so that you do not lose your paid holiday.

If you have not been allowed to take your paid annual leave, you may have a claim for loss of holiday pay. For more information on resolving disputes about holiday pay, see How to resolve disputes at work below.

Am I entitled to take Bank Holidays and other fixed holidays that fall during my maternity leave when I return to work?

All workers are entitled to a minimum of 28 days’ statutory paid holiday per year (pro rata if you work part-time). If your employer provides the legal minimum of 28 days’ paid holiday, including Bank Holidays, your employer must allow you to take at least 28 days’ paid holiday at another time i.e. before or after your maternity leave. This is because in the European Court of Justice case of María Paz Merino Gomez v Continental Industrias del Caucho SA, Case C-342/01 the court said that a woman must be allowed to take the minimum period of paid holiday provided by national law if her maternity leave overlaps a fixed holiday such as a Christmas or summer shutdown. Annual leave and maternity leave are separate legal rights and you are entitled to both.

If you are entitled to more than 28 days’ paid holiday, you must check your contract or maternity policy to see if you are allowed to take Bank Holidays or fixed holidays that fall during maternity leave at another time. For example, if your employer allows employees who are off sick on a bank holiday to take a day off in lieu, they should also allow women on maternity leave to do the same, as it may be discriminatory not to.

NHS employees in Scotland and Northern Ireland
As a result of cases brought by CSP and UNISON, NHS employees in Scotland and Northern Ireland are entitled to accrue Bank Holidays as well as annual leave during maternity leave so that they can take their public holidays once they return to work.

Rights on return to work

What is the minimum amount of maternity leave I have to take?

You are not allowed to work in the two weeks after your baby is born. This is called compulsory maternity leave. You must take at least four weeks compulsory maternity leave if you work in a factory. Otherwise, it is up to you to decide how much leave you wish to take. If you do not wish to take the full 52 weeks maternity leave, you must give at least 8 weeks’ notice that you are returning to work early. If you do not give 8 weeks’ notice and you return to work, your employer is entitled to refuse to pay you until the 8 week notice period has ended.

What are my rights on return from ordinary maternity leave (OML)?

OML covers the first 26 weeks of your leave.

Your employer should assume that you are taking 52 weeks’ maternity leave. If you only wish to take 26 weeks OML, you must give your employer at least 8 weeks’ notice to return to work early.

If you return to work before the end of your OML period, you are entitled to return to exactly the same job on the same terms and conditions as you were doing immediately before your maternity leave.

If you are not allowed to return or you are not given your old job back you may have a claim for unfair dismissal, automatic unfair dismissal and/or maternity discrimination. It may be maternity discrimination, if your role has been demoted or changed, your responsibilities have been given to your colleagues, or your maternity cover has been kept in your role and you have been disadvantaged because of your maternity leave.

If you have returned to work early, you and/or your partner may be able to take any unused maternity leave/pay as shared parental leave/pay if you need more time off. Shared parental leave must be taken within a year of the birth. For more information, see Shared Parental Leave and Pay.

What are my rights on return from additional maternity leave (AML)?

AML covers any part of the second 26 weeks of maternity leave. If you return to work during or at the end of AML (more than 26 weeks’ maternity leave) you are still entitled to return to exactly the same job on the same terms and conditions as you were doing immediately before your maternity leave. However, if your employer can show that it is not reasonably practicable for you to return to the same job, you are entitled to be offered a suitable alternative job on similar terms and conditions.

Your employer must be able to show that it is not reasonably practicable for you to return to your old job – this is unlikely to be the case, for example, if your maternity cover is still doing your job. This may be where there has been a reorganisation or other business-related reasons why jobs have changed. It may be maternity discrimination if your role has been demoted or changed, your responsibilities have been given to your colleagues, or your maternity cover has been kept in your role and you have been disadvantaged because of your maternity leave.

If there has been a reduction in work there may be a redundancy situation and your employer must consider a fair redundancy process. If your role is at risk of redundancy during your maternity leave, you are entitled to be offered a suitable alternative vacancy (if one is available). If your maternity leave ends after 6 April 2024, you are entitled to be offered a suitable alternative vacancy (if there is one), if your job is at risk of redundancy at any time from 18 weeks from the expected week of childbirth or date of birth if you have notified your employer.

You may have a claim for automatic unfair dismissal if you are made redundant and there was a suitable alternative vacancy and your employer did not offer it to you.

You may have a claim for maternity discrimination if you are selected for redundancy because of your absence on maternity leave. For more information on redundancy, see Redundancy during pregnancy, maternity and parental leave

This is what the law says about the right to return after maternity or parental leave:

Maternity and Parental Leave Regulations 1999 18.

(1) An employee who returns to work after a period of ordinary maternity leave, or a period of parental leave of four weeks or less, which was— (a) an isolated period of leave … is entitled to return to the job in which she was employed before her absence.

2)An employee who returns to work after— (a) a period of additional maternity leave, or a period of parental leave of more than four weeks … is entitled to return from leave to the job in which she was employed before her absence or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances.


What can I do if I am treated unfairly after taking maternity leave?

It is important to talk to your employer if you are concerned about changes to your job on return from maternity leave. You should give them information about your right to return to your old job and set out why you feel you have been disadvantaged because of your maternity leave. It is important to keep talking to your employer in order to try to resolve it and keep it amicable for as long as possible in order to maintain a good working relationship with your employer. You could ask for a meeting and set out your concerns in writing (you can send your employer an email).

If you are not able to resolve it informally, you can raise it more formally by speaking to your HR or senior managers. It is important to set out why you feel you have been disadvantaged and what changes you are asking for.

If you are thinking of making a claim in and employment tribunal, you should seek legal advice as there are strict time limits for starting employment tribunal claims. See below for How to resolve disputes at work.

Case study

Upon return from maternity leave, Mrs B was told that her job had been made redundant and that a new job had been created which she would have to apply for. In fact, the new job was almost identical to the one she had been doing but she was told that she had to compete for it, alongside her maternity cover. She felt that her employer was trying to find a way to keep her maternity cover instead of Mrs B. Mrs B made a tribunal claim against her employer. Her employer settled her claim before a tribunal hearing.


What happens if I am not well enough to return to work after maternity leave?

You are entitled to take sick leave if you are not well enough to return to work after maternity leave and you should provide a sick note and follow your employer’s normal sickness reporting procedures.

If you normally receive full pay during sick leave, you are entitled to sick pay as normal. If your employer pays Statutory Sick Pay, you may not qualify for SSP immediately after unpaid additional maternity leave, see: www.gov.uk/statutory-sick-pay For more information, see Sickness during pregnancy and maternity leave.

Do I have any rights if I wish to continue breastfeeding on return to work?

Unfortunately there is no legal right to breastfeeding breaks at work, however, you can make a flexible work request if you need to change your days, hours or place of work to enable you to continue breastfeeding.

If you are concerned about health and safety risks in relation to breastfeeding on return to work, you must notify your employer in writing that you are breastfeeding and your employer must take reasonable action to remove any health and safety risks or provide suitable alternative work. For more information, see Continuing to breastfeed on return to work.

I have asked if I can return to work part-time after maternity leave but my employer has told me I will have to take a less senior job. What are my rights?

You have the right to return to your old job on the same terms and conditions as before. If you need to change your hours, days or place of work after maternity leave e.g. to go part-time or work partly from home, you must make an ‘application for flexible work’.

It is important to make a written application and consider carefully how you think the new arrangement will work so that you can negotiate the change with your employer. Your employer may have their own form for requesting changes or you can use the Government form here: www.gov.uk/government/publications/the-right-to-request-flexible-working-form.

Your employer must seriously consider how you can do your current job – on the same level of seniority – on a part-time basis and can only refuse for certain business reasons. Your employer is expected to hold a meeting to discuss your request and you have the right to appeal if your request is refused. You are entitled to a final decision within three months of your application so it is important to allow plenty of time. If your employer refuses your request without a good business reason you should get advice as this may be indirect sex discrimination.

If your employer refuses your request and you agree that it would be difficult to do your current job part-time or in the way that you are asking, you may have to decide whether to return to your old job on the same seniority and hours you were doing before your maternity leave or to take the new job on the hours you want. You are entitled to appeal your employer’s refusal and you could use the appeal meeting as an opportunity to discuss with your employer whether there are other more suitable jobs available, however, if you think your employer is justified in refusing your request you may need to accept the changes to your role or to your terms and conditions.

For more information on flexible work, model letters and what to do if your request is refused, see Child friendly working hours.


Resigning during or after maternity leave

I have decided not to return to work. What should I do and what am I entitled to?

You should resign in the normal way, giving the notice period stated in your contract. If there is no agreed notice period at your work you should give at least one week’s notice.

If you resign during your maternity leave, you do not have to go into work to ‘work’ your notice, you can remain on maternity leave during your notice period. But if you resign after the end of your maternity leave, you should work your notice unless you have agreed to take annual leave or you need to take sick leave.

You are entitled to receive your Statutory Maternity Pay (SMP) or Maternity Allowance for the full 39 week period, even if you resign before the end of the maternity pay period. You do not have to repay any Statutory Maternity Pay or Maternity Allowance. Your employer claims it back from HM Revenue and Customs and it is yours to keep.

You continue to accrue all your contractual benefits, apart from remuneration, during maternity leave so you are entitled to continue to receive any contractual benefits until the date your contract of employment comes to an end i.e. at the end of your notice period. Your annual leave continues to accrue until the end of your contract, so you are entitled to payment for any annual leave that you have not yet taken that has accrued up until the end of your employment. For more information, see Resigning from your job during pregnancy and maternity leave.

Do I have to repay my company maternity pay if I do not return to work?

If you are not returning to work after maternity leave, you may have to repay any occupational maternity pay provided by your employer if you do not return for a specified period and you must check your contract. You only ever have to repay the extra company maternity pay – over and above your SMP or Maternity Allowance – if it was agreed in advance or stated in your employer’s maternity policy.

It may be worth exploring ways of returning to work if you want to avoid having to repay your occupational maternity pay. For example, can you use your accrued annual leave for a phased return to work or return part-time or on a more flexible working arrangement? If your employer has refused a flexible work request without good business reasons and you are not able to return for childcare reasons you may have a claim for indirect sex discrimination. See our information sheet Child friendly working hours

Once your maternity leave has ended you are ‘back at work’, therefore returning part-time or taking further leave such as annual leave or sick leave will often count towards your return to work period. Occupational maternity pay is a benefit provided by your employer and you will need to check your contract or maternity policy for your employer’s terms and conditions. If there is a dispute about whether your maternity pay is repayable or how much is repayable you should talk to your employer to try to resolve it. Your employer may be willing to waive repayment of your occupational maternity pay as part of an exit settlement if you are not able to return to work after maternity leave.

If there has been an overpayment of pay or maternity pay during your maternity leave, your employer can recoup it.

You can ask to repay any company maternity pay or overpayment in reasonable instalments, taking account of your household income and outgoings. You must be able to cover essential bills and housing costs. You may find it helpful to speak to a debt adviser who can help you negotiate with your employer and agree a reasonable repayment plan. You can get free regulated debt advice from Stepchange – www.stepchange.org/ and Debt Advice Foundation – www.debtadvicefoundation.org/about-us/.

Discrimination during maternity leave and on return to work

What is maternity discrimination?

The law says that it is discrimination to treat a woman unfavourably on the grounds of her pregnancy or maternity leave (Equality Act 2010 s18). To show discrimination on the grounds of pregnancy or maternity leave you do not have to compare yourself to how a man might have been treated but you must show that the unfavourable treatment or dismissal was because of your pregnancy or maternity leave.

This is what the law says about pregnancy and maternity discrimination at work

Equality Act 2010, section 18,

(2) A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably —

(a) because of the pregnancy, or
(b) because of illness suffered by her as a result of it.

(3) A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave.

(4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.

All employees, casual workers, agency workers, freelancers and contractors are protected by discrimination law from day one of their employment. It also applies if you are applying for a job and during a probation period – you would need to show that you were not offered the job or a job offer was withdrawn or not extended beyond your probation period because of pregnancy or maternity leave.

Examples of unfavourable treatment and unfair dismissal include:

  • selecting you for redundancy or dismissal because of maternity leave or because of changes to your job during your absence on maternity leave,
  • failing to consult you about a reorganisation, changes to your job or redundancy during maternity leave,
  • failing to provide a suitable alternative vacancy if your job is at risk of redundancy during maternity leave (Maternity and Parental Leave Regs 1999, reg. 10),
  • making changes to your job that make it substantially less favourable to you,
  • refusing training or promotion opportunities,
  • reducing your pay or hours without your agreement following maternity leave,
  • withdrawal of a job offer or new contract
  • pressure to resign and
  • demotion on return to

If you are an employee you may also have claims for unfair dismissal, automatic unfair dismissal and/or detrimental treatment because of pregnancy, childbirth or maternity leave. These rights come from the Employment Rights Act 1996 section 47C and section 99 and the Maternity and Parental Leave etc Regulations 1999, regulations 19 and 20. This rights apply to all employees from day one of your employment.

When does pregnancy/maternity discrimination apply?

The protected period applies throughout pregnancy until the end of your maternity leave period (up to 52 weeks or until you return to work, if earlier). In most cases you will need to show that you told your employer about your pregnancy or they had become aware of it.

If you are not employee or you are not entitled to maternity leave, for example, if you are an agency worker, the protected period ends two weeks from the date of childbirth.

You may still be able to claim maternity discrimination once you have returned to work if you can show that the unfavourable treatment related to a decision taken during your maternity leave.

This is what the law says about the protected period for pregnancy/maternity discrimination:

Equality Act 2010, section 18,

(6)The protected period, in relation to a woman’s pregnancy, begins when the pregnancy begins, and ends—

(a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy;

(b) if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy.

After the protected period for pregnancy/maternity discrimination, you may be able to claim sex discrimination if you can show that you were treated less favourably on the grounds of your sex or treated less favourably than a man would have been treated in similar circumstances.

I have been dismissed at the start of my maternity leave but my employer says that it is because of poor performance. What can I do?

An employer will rarely admit that an employee has been dismissed for being absent on maternity leave. There will be circumstances when a dismissal during maternity leave may be for fair reasons, such as gross misconduct or persistent poor performance.

Except in the most serious cases of gross misconduct, the employer will be expected to have warned the employee and conducted a disciplinary hearing. However, if the dismissal or detrimental treatment is because of your maternity leave or for reasons connected to your maternity leave, it may be maternity discrimination.

You are entitled to ask for written reasons if you are dismissed at any time during pregnancy or maternity leave. If your employer fails to provide written reasons for your dismissal without a good reason, you can complain to a tribunal and can be awarded up to two weeks’ pay in compensation.

If you bring a tribunal claim for automatic unfair dismissal and discrimination during maternity leave, your employer will have to prove that the dismissal or unfavourable treatment was not because of your absence on maternity leave. See How to resolve disputes at work, below.

My employer has sent me a P45 because I have been absent from work without pay for more than three months. Is this maternity discrimination?

If you are an employee you are entitled to maternity leave, with the right to return to the same job, as well as any maternity pay that you qualify for. A policy of issuing a P45 once you have been absent from work without pay for more than three months may be maternity discrimination and/or indirect sex discrimination. This may happen if you are not entitled to SMP and you are receiving Maternity Allowance from the JobCentre Plus instead. You can get further advice from Maternity Action, see Where to go for more help.

If you are an agency worker and you are not receiving SMP from your agency, your agency can issue a P45 once you have been absent from work for more than three months without any pay. This may happen if you are not entitled to Statutory Maternity Pay and are receiving Maternity Allowance instead. You can still register with the agency again once you are available for work.

Agency workers are not entitled to maternity leave i.e. the right to take time off and return to the same job, but may still be entitled to maternity pay. An agency worker may be able to get Statutory Maternity Pay from your agency or you may be able to claim Maternity Allowance from the JobCentre Plus instead. For more information, see Maternity Pay Questions.

If you are claiming Working Tax Credit you are still treated as employed full-time during your SMP or Maternity Allowance period. You can remain on Working Tax Credit during your maternity pay period. After your maternity pay ends you can remain on Child Tax Credit or go back onto Working Tax Credit if you resume work. If you are not claiming tax credits you may be eligible for Universal Credit during or after your maternity pay period. For more information on benefits for families, see: Money for Parents and Babies.

I have been selected for redundancy but I think it is because I am on maternity leave. What can I do?

You can be made redundant during maternity leave if it is a genuine redundancy situation such as where the workplace is closing, there is less work to do or your employer needs fewer employees and you have not been selected because of your maternity leave. Your employer must use fair criteria to select for redundancy and must consult with employees. You must be consulted even if you are absent on maternity leave. Failure to consult a woman on maternity leave about redundancy may be maternity discrimination.

If your role is at risk of redundancy during your maternity leave, you are entitled to be offered a suitable alternative vacancy (if one is available). If your maternity leave ends after 6 April 2024, you are entitled to be offered a suitable alternative vacancy (if there is one), if your job is at risk of redundancy at any time from 18 weeks from the expected week of childbirth or date of birth if you have notified your employer.

You may have a claim for automatic unfair dismissal if you are made redundant and there was a suitable alternative vacancy and your employer did not offer it to you.

You have priority over other employees who are not absent from the workplace on maternity leave and you do not have to attend interviews or selection assessments.

If you are selected for redundancy because you are absent on maternity leave, you may have a claim for unfair dismissal, automatic unfair dismissal and/or maternity discrimination. For full information about your rights, see Redundancy during pregnancy, maternity and parental leave

My employer has changed aspects of my job since I went on maternity leave and I feel that I am being sidelined. What can I do?

Unfavourable treatment because of pregnancy or maternity leave can include a wide range of behaviour, such as reducing your workload, refusing work on certain projects or clients, removing management responsibilities and other changes that may affect your chances of promotion or which might increase the risk that you will be made redundant.

Case study

Following her return from her first maternity leave, Mrs A found that her job had been changed and her responsibilities eroded. A colleague was then brought in to co-head her team and was gradually allocated more and more of her responsibilities. Mrs A was ultimately made redundant when she was on her second maternity leave. She started a claim in an employment tribunal and reached a settlement with her employer following mediation.

Your employer may be cutting work for other reasons, for example, a genuine downturn in the work available, so it is a good idea to speak to your employer informally at first to try to resolve it.

If necessary, you can write to your employer, your HR department or a senior manager and ask for a meeting to discuss it further. If you are in a union you should speak to your local representative or you can get legal advice from the union’s legal department.

You should continue talking to your employer for as long as possible to try to resolve things. Try to keep it friendly and constructive, focusing on solutions and trying to find a way forward, rather than going over what has gone wrong.

If it is not possible to resolve it, as a last resort, you can use your employer’s grievance procedure if you want to complain about the way you have been treated. If you are thinking of making a claim in an employment tribunal you must contact ACAS first for Early Conciliation within three months (less one day) from the date of the act or series of acts you are complaining about.

How to resolve disputes at work

What can I do if I have been treated unfairly because of maternity leave?

It is important to try to resolve disputes amicably wherever possible, especially if you want to return to your job, so try to keep talking to your employer and keep it informal for as long as possible. You could ask for a phone call or meeting with your line manager or HR and follow it up with a short email outlining what was discussed.

Try to keep it friendly and constructive and focus on practical solutions, rather than going over what has gone wrong. As there is a three month time limit for starting employment tribunal claims, you may be out of time for raising issues that happened earlier in your pregnancy for instance (unless you can show an ongoing course of discrimination) so it is important to focus on your current concerns and how you would like your employer to resolve them.

It may help to give your employer information on your rights during maternity leave and on return to work. You can set out your concerns in writing (you can send an email). It may also be a good idea to talk it through with your union, your HR department or a more senior manager.

If you have been unable to resolve it informally or by talking to your employer, you can use your employer’s grievance procedure. However, it is best to use a grievance as a last resort as it can often be harder to keep a good working relationship once you have raised a complaint.

Whilst it is important to keep talking to your employer (and you must explore all avenues for trying to resolve it if you are thinking of making a claim in a tribunal), you must bear in mind that there are strict time limits for making employment tribunal claims.

If you want to make a claim in an employment tribunal you must contact ACAS Early Conciliation on 0300 123 11 00 first. There is a strict time limit for starting a tribunal claim of three months, less one day, from the date of the act or series of acts you are complaining about.

In some circumstances, if your employer’s conduct amounts to a breach of contract and you feel unable to continue working, you can resign and claim constructive dismissal but you should get legal advice first as these can be difficult cases to bring and if you stay in your job for too long you may be considered to have accepted the breach. The outcome of tribunal cases can be uncertain and you need to be sure that any compensation awarded (if your case is successful) would cover your legal costs.

If you think that you have suffered unfavourable treatment because of your pregnancy or maternity leave, you should seek legal advice as soon as possible.

If you do not want to take a claim to tribunal, you could ask your employer if they would be willing to explore mediation as a way of resolving disputes about your rights during maternity leave or return to work. If you think you have been treated unfairly and you no longer feel able to continue working for your employer you could try to negotiate an exit settlement in order to bring your employment to an end.

See the information sheet, Dealing with problems at work for more on how to negotiate with your employer and how to bring a claim in a tribunal.

If you are dismissed during pregnancy or maternity leave you are entitled to written reasons for the dismissal.

If your employer has not paid any or all of your Statutory Maternity Pay, has gone into liquidation or dismissed you solely or mainly to avoid payment of SMP, you can claim it from HMRC Statutory Payments Disputes Team on 0300 322 9422, see Where to go for more help below.

Benefits for families

Are there any other benefits I can claim?

Once your baby is born you can claim Child Benefit. Families in receipt of child benefit will be subject to a high earner child benefit charge if one or more parent earns over£60,000 from April 2024.

If you are already claiming Child Tax Credit and/or Working Tax Credit you may be able to claim an additional amount for a new baby. The first £100 per week of SMP and all of Maternity Allowance is ignored as income for tax credits purposes so you may be entitled to more help during your maternity pay period. You should get advice before making a new claim for Universal Credit as you cannot go back onto tax credits and you may be worse off on Universal Credit. For more information contact the Tax Credit Helpline on 0345 300 3900 or see: www.gov.uk/child-tax-credit/already-claiming.

You may be able to claim Universal Credit (if you are not receiving Child or Working Tax Credit) if you are on a low income, you have had a new baby or during maternity or parental leave. SMP is treated as earnings and is partially disregarded under Universal Credit rules but all of Maternity Allowance is treated as unearned income and is deducted from a Universal Credit award. For more information on Universal Credit, see: www.gov.uk/universal-credit You can also get advice from the Citizens Advice free Universal Credit Help to Claim service: England:0800 144 8444, Wales:0800 024 1220, Scotland:0800 023 2581.

For an online benefits calculator, see www.betteroffcalculator.co.uk

If you or your partner are receiving Universal Credit, Income Support, income-based Jobseekers Allowance or Employment Support Allowance (not contribution-based benefits) or Child Tax Credit you may be entitled to a Sure Start Maternity Grant (England, Wales, NI) or Best Start Grant (Scotland). You may also be entitled to Healthy Start/Best Start Foods if you are pregnant or have a young child.

For more information on benefits for families, see: Money for Parents and Babies.

Where can I get more information on help with childcare costs?

Maternity Action is unable to provide advice on help with childcare costs but the following may be helpful:

  1. To explore whatchildcarehelp you may be entitled to, see the government’sChildcareChoices websitehttps://www.childcarechoices.gov.uk/
  2. You can find a childcarecalculator here:https://www.gov.uk/childcare-calculator
  3. HMRCChildcareServicecan advise on entitlement to 30 hours freechildcarefor 3 and 4 year olds, 15 hours freechildcarefor 2 year olds and tax freechildcare, as well as using yourchildcareaccount.HMRCChildcareService: 0300 123 4097, Monday to Friday: 8am to 6pmhttps://www.gov.uk/government/organisations/hm-revenue-customs/contact/childcare-service-helpline
  4. For information on 30 hours fundedchildcarefor 3 and 4 year olds and 15 hours for 2 yearolds including eligibility conditions, seehttps://www.gov.uk/check-eligible-free-childcare-if-youre-working
  5. For more information about childcare and Universal Credit, see:https://www.gov.uk/guidance/universal-credit-childcare-costs

This information sheet was written in April 2024. It is very important to get up-to-date advice as law and guidance changes.

This guide isforinformationpurposes only and should not be treated as legal advice. You are strongly advised to get personal legal advice about the individual circumstances of your case.

Where to go for more help

Maternity Action

For information on maternity and parental rights at work and benefits, see: www.maternityaction.org.uk.

Maternity Rights Advice Line – 0808 802 0029

For opening hours see: https://maternityaction.org.uk/advice-line.

ACAS

For advice on employment rights or for Early Conciliation if you are thinking of making a tribunal claim

www.acas.org.uk

Helpline: 0300 123 11 00 (offers telephone interpreting service)

Citizens Advice

For information about your rights see: www.citizensadvice.org.uk

You can telephone the national Citizens Advice phone service on 03444 111 444

You can get help with Universal Credit claims through the free national Help to Claim service: England:0800 144 8444, Wales:0800 024 1220, Scotland:0800 023 2581

For more information on how to find your local Citizens Advice Bureau, see:

https://www.citizensadvice.org.uk/about-us/contact-us/contact-us/contact-us/

Civil Legal Advice

If you are eligible for legal aid you can get free legal advice on 0345 345 4 345 (offers translation service). To check your eligibility see www.gov.uk/civil-legal-advice

To search for specialist legal advisers or solicitors in your area see: https://find-legal-advice.justice.gov.uk/

Equality Advisory Support Service

Help and advice on discrimination and human rights www.equalityadvisoryservice.com

Helpline: 0808 800 0082 Mon – Fri 9am – 7pm, Sat 10am – 2pm

Textphone: 0808 800 0084

Equalities and Human Rights Commission (EHRC)

For information and advice about discrimination law www.equalityhumanrights.com

For information for employees and employers about pregnancy and maternity rights in the workplace see: www.equalityhumanrights.com/about-us/our-work/key-projects/managing-pregnancy-and-maternity-workplace

GOV.UK

The government’s online information service www.gov.uk

Jobcentre Plus

To make new telephone benefit claims or request claim forms, including Maternity Allowance and Sure Start Maternity Grant: 0800 055 6688 Mon – Fri 8am – 6pm

For ESA/JSA/Income Support claims: 0800 169 0310 Mon – Fri 8am – 6pm

For Maternity Allowance claims: 0800 169 0283 Mon – Fri 8am – 6pm

For Sure Start Maternity Grant claims: 0800 169 0140 Mon – Fri 8am – 6pm/For Best Start Grant claims in Scotland: 0800 182 2222

Universal Credit helpline – for new claims and existing online claims: 0800 328 5644. Mon – Fri 8am – 6pm

For help with claiming Universal Credit see: www.gov.uk/universal-credit

HM Revenue & Customs (HMRC)

Tax Credit Helpline: 0345 300 3900 Mon – Fri 8am-8pm, Sat 8am-4pm, Sun 9am -5pm

Child Benefit: 0300 200 3100 Mon – Fri 8am-8pm, Sat 8am- 4pm

For queries about Statutory Maternity Pay, Adoption Pay, Paternity Pay and Shared Parental Pay:

Employees helpline 0300 200 3500

Employers helpline 0300 200 3200

HMRC Statutory Payments Disputes Team

If you cannot resolve a dispute about your SMP, you can ask HMRC for a formal decision on your entitlement. You can also ask HMRC to pay your SMP if your employer has refused to pay, has dismissed you to avoid paying SMP or has gone into liquidation. This includes disputes about Statutory Maternity Pay/Adoption Pay/Paternity Pay/Shared Parental Pay/Parental Bereavement Pay or Statutory Sick Pay

See: https://www.gov.uk/guidance/statutory-pay-entitlement-how-to-deal-with-disagreements

Telephone: 0300 322 9422

You can also write to the Statutory Payments Disputes Team at HM Revenue and Customs, PT Operations, Statutory Payments Dispute Team,BX9 1AN.

Insolvency Service Helpline

You can currently only contact the Insolvency Service online.

For what you can claim if your employer goes out of business, see: https://www.gov.uk/your-rights-if-your-employer-is-insolvent

Law Centres Network

To find out if there is a Law Centre in your area telephone 020 3637 1330 or see: www.lawcentres.org.uk/

Turn2us

Online benefits calculator and grant search www.turn2us.org.uk

More Maternity Action information sheets

Rights during pregnancy

Pregnant at work 2021

Pregnancy Discrimination

Time off for antenatal care

Health and safety during pregnancy and return to work

Resigning from your job during pregnancy and maternity leave

Changing jobs or more than one job

Pregnant during maternity leave (when you are expecting again)

Premature births – rights to maternity leave and pay

Miscarriage stillbirth and neonatal death – rights to time off and pay

Maternity pay and benefits

Maternity Pay Questions

Money for Parents and Babies

Maternity and parental leave

Rights during maternity leave and return to work

Keeping in touch during leave

Shared Parental Leave and Pay

Time off for Working Parents

Asking to change your working hours or go part-time

Child friendly working hours

Redundancy, dismissal and discrimination

Pregnancy Discrimination

Rights during maternity leave and return to work

Redundancy during pregnancy, maternity and parental leave

Dealing with problems at work

Health and safety, breastfeeding and sickness

Sickness during pregnancy maternity leave and return to work

Health and safety during pregnancy and return to work

Postnatal depression and depression during pregnancy

Childbirth injuries – rights at work and benefits for new mothers

Breastfeeding on return to work

Breastfeeding while out and about

Self-employed, agency and zero hours work

Maternity and parental rights for agency workers

Maternity and parental rights if you are self-employed

Changing jobs or more than one job

Zero hours contracts – maternity and parental rights

Apprentices – maternity and parental rights at work

Fathers and partners, including same sex partners

Rights at work for fathers and partners

Shared Parental Leave and Pay

Child friendly working hours

Time off for Working Parents

Dealing with problems at work

Adoption or surrogacy

Adoption leave and pay

Time off and pay for parents-surrogacy

Shared parental leave and pay – adoption

Money for Parents and Babies

Available at www.maternityaction.org.uk

Rights during maternity leave and return to work - Maternity Action (2025)
Latest Posts
Recommended Articles
Article information

Author: Cheryll Lueilwitz

Last Updated:

Views: 5413

Rating: 4.3 / 5 (54 voted)

Reviews: 93% of readers found this page helpful

Author information

Name: Cheryll Lueilwitz

Birthday: 1997-12-23

Address: 4653 O'Kon Hill, Lake Juanstad, AR 65469

Phone: +494124489301

Job: Marketing Representative

Hobby: Reading, Ice skating, Foraging, BASE jumping, Hiking, Skateboarding, Kayaking

Introduction: My name is Cheryll Lueilwitz, I am a sparkling, clean, super, lucky, joyous, outstanding, lucky person who loves writing and wants to share my knowledge and understanding with you.