Q. Do I need to carry on paying statutory maternity leave to an employee who is working self-employed while on maternity leave?
A. Both SML and statutory maternity pay are in place to support working mothers by facilitating a period of paid time-off following childbirth.
While the ability to take 52 weeks of SML is a right for employees as long as they provide the correct notice, the eligibility requirements for up to 39 weeks of SMP are more complex.
To be eligible for SMP, employees must have completed at least 26 weeks of continuous service at the 15th week before the expected week of childbirth (the ‘qualifying week’).
They must have provided evidence of their expected week of childbirth with a MAT B1 certificate and given their employer at least 28 days notice of the date they want the payment of SMP to begin.
Finally, individuals must have average earnings of at least £118 per week in the eight weeks leading up to the qualifying week.
Despite the money provided by SMP, it is not uncommon for employees on maternity leave to use this time to undertake self-employed work on a casual basis in order to receive some extra income.
It is important to note that doing so will not impact their entitlement to SMP and there is no need for them to inform you of any self-employed work.
However, given the continued confusion surrounding employment status it will also be advisable to check the employee is truly self-employed before cancelling any planned SMP.
It can be a different situation if the employee commenced employment for another organisation during their maternity leave as this may result in them having to surrender their entitlement to SMP.
This will apply if they begin work with an employer during their maternity leave and after the birth who they were not employed by during the qualifying week of pregnancy.
They have a duty to inform you of this immediately and you should refrain from paying any further SMP from the start of the week they begin this employment.
It is worth noting that in the above situation, you cannot simply take disciplinary action against the employee for taking on additional employment during their maternity leave unless you have a contractual provision in place.
You may want to include this as part of employment contracts to prevent them from working for a competitor while on SML, however consider how a blanket ban may penalise mothers wanting to carry out unrelated part-time work to earn extra money for their child.
In light of the above, it would be advisable to inform expectant mothers of their full rights and the options available to them prior to going on SML.
Many employers choose to provide maternity packs filled with a host of important information, including who to contact if they have any additional queries or issues during their maternity leave.