Statutory maternity pay (SMP) factsheet

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What is SMP?

Statutory Maternity Pay (SMP) was first introduced in 1987 and is paid to eligible women who take a period of maternity leave either prior to, or from the date that their baby is born.

Eligibility
There are criteria that need to be met before a woman can qualify for payment of SMP. They are currently as follows:

  • The woman must be an employee, not a worker
  • They must provide their employer with the appropriate notice – at least 28 days before the day that they want to stop work
  • They must earn, on average, at the level of at least, the Lower Earnings Limit (LEL), which is currently £120 per week (2021-2022)
  • They must provide proof that they are pregnant – within 21 days of SMP start date, they can provide a letter from their doctor or midwife, or their MATB1 certificate
  • They must have worked for their employer continuously for at least 26 weeks continuing into the ‘qualifying week’*

Payment

  • Payment for weeks 1-6 should equate to 90% of Average Weekly Earnings (AWE)
  • Payment for weeks 7-39 should equate to whichever figure is lower of £151.97 per week or 90% of AWE
  • Payment should be made via payroll, subject to normal deductions, and the year to date figure reported via the Full Payment

Submission (FPS)
HMRC provides a calculator, which can be used to determine what maternity payments and leave an employee is entitled to. Employers can pay more than the rate of SMP if they wish to, and details of enhanced maternity pay should be provided in the relevant company policies.

Leave
Maternity leave is a day one right, and employees can take up to a maximum of 52 weeks’ worth of leave.

  • The first 26 weeks – Ordinary Maternity Leave (OML)
  • The last 26 weeks – Additional Maternity Leave (AML)

The period of AML starts the day after the OML period finishes.

There is a key difference between OML and AML in relation to the woman’s right to return to work following the end of their maternity leave.

At the end of OML, a woman has the right to return to their old job, but at the end of AML their right to return changes slightly. They have the right to return to their old job but, where it is not reasonably practicable for the employer to offer them their old job back, they can be offered appropriate similar employment, but on no less favourable terms, and seniority and pension conditions must remain unchanged.

* The ‘qualifying week’ is the 15th week prior to the expected week of childbirth

The first 13 weeks of AML will be paid at the rate of SMP if the woman is eligible, but there is no payment of SMP for the remaining 13 weeks of AML.

The leave can be taken up to 11 weeks prior to the expected week of childbirth, unless the baby is born early, in which case the leave can be taken from that point.

It is mandatory for employees to take a minimum of two weeks off after the birth, and this is extended to four weeks if they work in a factory environment.

Employer reclaim
Employers can reclaim either a portion or all of the SMP paid out to employees. For larger employers, this will be at 92% of the amount paid, but for employers that qualify for Small Employers’ Relief**, they will have the full amount repaid to them, plus a compensatory element of 3%.

The amount is recovered by an offset against the remittance due to be paid over to HMRC and is reported via the Employer Payment Summary (EPS), which needs to be submitted by the 22nd of the Month (or 19th if paying by post) of the month following the period in which payment was made.

Employer advance
Employers are also able to apply for an advance in situations where they have insufficient remittances available to fund the SMP paid to their employee(s). Applications can be made up to four weeks prior to the date that the first payment is due.

Any claims in excess of the amount of the statutory payments to be reclaimed that are recorded on the EPS will need to be repaid to HMRC.

If a business is insolvent, HMRC will pay SMP. They will also pay it to any pregnant employees who have passed the qualifying week but have not yet started receiving SMP. The business should contact the National Insolvency Unit to inform them that they are insolvent, and the employee must contact the Statutory Payment Disputes Team.

Record keeping
Records relating to SMP must be kept for HMRC, and they include:

  • Proof of pregnancy – a form MatB1 or a doctor’s note
  • The date SMP began
  • Records of the SMP payments made, along with dates
  • Records of the SMP reclaimed
  • Any weeks that SMP was not paid for and the associated reason

Records must be retained for a minimum period of three years from the end of the tax year that they relate to. An SMP2 form can be used for this, or employers may keep their own records.
Process where an employee is not eligible for SMP

If a woman does not meet the eligibility criteria for payment of SMP, then there is a process for employers to follow. The employer must provide the employee with an SMP1 form which details the reason as to why they will not receive SMP. This must be done within seven days of the employer reaching the decision, and must be provided to the employee by whichever is earliest:

  • Within 28 days of their request
  • Date of the child’s birth

If a woman is not eligible for SMP, she may be entitled to Maternity Allowance for either 39 weeks or 14 weeks, subject to certain eligibility criteria.

** To qualify for Small Employers’ Relief, employers must have only been liable to pay Class 1 National Insurance (NI) contributions equating to £45,000 or less in the qualifying tax year.
 

What happens if the baby is born early, or if the baby dies?
In a scenario where the baby is born early, the leave begins the day after the birth. The employee must provide their employer with the child’s birth certificate or a document signed by a doctor or midwife confirming the actual date of birth.

Employers must write to their employee to confirm the revised end date of their leave.

In cases where the child is born 15 weeks or more prior to the due date, SMP will need to be calculated either using payroll software or it will need to be calculated manually, if that functionality is not available. In the unfortunate event that the baby dies, employees will still qualify for leave or pay if the baby is stillborn after the start of the 24th week of pregnancy, or if it dies after being born.

Impact on pensions
There are a number of considerations in relation to pensions when a woman takes maternity leave and pension contributions during maternity leave will depend in the type of scheme in operation, along with the wishes of the employee. Scheme rules will dictate how to proceed but this website provides useful guidance on the topic. The Pensions Advisory Service provides further detail on this topic

Calculations
In order to calculate an employee’s SMP, the following information is required:

  • The date the baby is due
  • The employee’s planned start date for SMP
  • The employee’s gross pay and the dates that they were paid
  • Confirmation that the employee’s gross earnings are subject to employer’s Class 1 NI contributions, or that they would be if it weren’t for the employee’s age or level of earnings

Prior to calculating the amount of SMP to pay, the AWE figure should first be established.

To calculate AWE, all earnings on which Class 1 NI contributions were due should be considered. A calculation should be applied to the AWE in the relevant period, which is the eight-week period prior to the qualifying week*. Where pay is monthly the calculation will be as follows:

  • Divide by 2 (as this is the number of months in the relevant period)
  • Multiply by 12 (as this is the number of months in the year)
  • Divide by 52 (as this is the number of weeks in the year

The figure should not be rounded up or down to arrive at whole pence.

Please note that AWE should be calculated on the basis of earnings received within the relevant period, irrespective of whether there was any under or overpayments in that period. If an over or under payment of wages has occurred in the relevant period, the overpaid or underpaid amount must be used in the AWE calculation for establishing whether or not SMP is due.

SMP is a weekly payment. SMP pay weeks begin with the first day of the SMP pay period, so an SMP pay period that commences on a Wednesday will have pay weeks within the pay period that runs from Wednesday to Tuesday the following week.

Payment for weeks 1-6 should be paid at 90% of the AWE, and for weeks 7-39 will be whichever is the smaller figure out of £151.97 or 90% of AWE.

Further details on how to calculate SMP are available on GOV.UK.

Alabaster Calculations
A European Court of Justice case, which now impacts the way in which an employee’s AWE is calculated for the purposes of SMP when an employee is given a pay rise, is referred to as Alabaster.

If an employee receives a pay rise that takes effect from any time between the start of the eight-week set period for calculating SMP and the end of the woman’s statutory maternity leave, then a relevant pay adjustment needs to be made.

Guidance on how to make an alabaster calculation is available within HMRC’s Statutory Payments Manual. An employee leaves employment after the qualifying week.

Where an employee leaves employment after the qualifying week, their employer must still pay them SMP. This can be done by paying the employee SMP at the normal pay intervals, or by paying the remaining amount of SMP as a lumpsum to the employee who has left.

Keeping in Touch (KIT) Days
Employees have the option of working up to ten days during their period of maternity leave, and they are referred to as Keeping in Touch (KIT) days.

Both the employee and employer need to agree to them, and the nature of the work and pay that the employee receives must be agreed prior to the KIT day being fulfilled.

KIT days do not affect a woman’s entitlement to maternity leave and pay.

Pregnancy related illness
Should a woman be required to take absence from work due to a pregnancy-related illness in the four weeks prior to the baby’s due date, then maternity leave and SMP commences automatically.
Other considerations

  • Employees retain their employment rights during maternity leave - the right to holidays (women continue to accrue holiday leave under their contract of employment whilst on maternity leave).
  • There are different rules for entitlement for certain employment types – for example, agency workers, directors and educational workers
  • Where a worker is an employee of their own intermediary, including those who are also deemed employees of the fee- payer/deemed employer under the off-payroll working rules, eligibility for statutory payments arises from the worker’s direct employment with their intermediary and not from the deemed employment with the fee-payer/deemed employer
  • Employers must not discriminate in any way against women on maternity leave
  • If a contract of employment stipulates that an employer will not provide employees with salary sacrifice childcare vouchers during their period of maternity leave, then they do not have to. If the contract does not state this, then an employer must provide employees with childcare vouchers whilst they are on maternity leave, and the employee will have no salary sacrifice deductions taken from SMP
  • Non-cash benefits provided to an employee under a salary sacrifice scheme must continue to be provided during the period of maternity leave, but SMP cannot be reduced by salary sacrifice

Interaction with furlough leave
For employees who were on furlough and were paid with funding from the Coronavirus Job Retention Scheme (CJRS) during any part of the relevant 8 week period, different rules about how to work out their AWE will need to be used.

The reason for this is to ensure that an employee’s eligibility for SMP and earnings-related rate of SMP is not affected if their wages are lower than normal because of being furloughed.

The earnings used to work out their AWE for the part of the eight-week period that they were furloughed will be the higher of either what they:

  • ● Actually received from their employer
  • ● Would have received from their employer had they not been on furlough

Where it’s not clear what the employee would have received, a helpful starting point is the reference salary used to determine how much you can claim through the CJRS.

Employers should also consider payments the employee was due to receive in the relevant period that would have been classed as earnings which could include:

  • Bonus payments
  • Commission payments

There will be no change to how their AWE is calculated whereby:

  • The employer is claiming the employee’s wages through the CJRS and their payment is being topped up to their full pay at the employer’s own cost
  • Due to the result of the coronavirus crisis, during the relevant period the employer agreed a reduction in pay with the employee outside of the CJRS

Statutory payments

To learn more, take a look at the CIPP's Statutory Maternity Pay (SMP) and Introduction to Statutory Payments training courses

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