The legal definitions of pregnancy and maternity discrimination, who is protected and the first steps you should take if you think you have been discriminated against at work.
What are my entitlements?
Your entitlements to maternity leave and pay depend largely on:
- whether the Burgundy Book scheme is part of your contract of employment;
- whether there is a local agreement applying to you which improves on what is offered to teachers under the national agreement; and
- whether you have the required length of ‘continuous employment’ to qualify for these entitlements. This may also be referred to as ‘continuous service’.
Occupational maternity pay
To qualify for occupational maternity pay, you must be covered by the Burgundy Book and employed for at least one year and 11 weeks with one or more local authorities by the expected week of childbirth.
Occupational maternity pay is also paid for a continuous period of up to 33 weeks. For the first four weeks, you will be paid at 100 per cent of salary. Weeks 5 - 6 are paid at 90 per cent of salary, and weeks 7 - 18 at 50 per cent of salary plus the standard Statutory Maternity Pay rate of £139.58 per week. The remaining 21 weeks are paid at the standard Statutory Maternity Pay rate.
Teachers Working In the Local Authority Sector
Teachers employed in the local authority sector, other than supply teachers, will generally have the Burgundy Book scheme included in their contract of employment.
- If you work in a local authority-maintained community or voluntary-controlled school, your employer is the local authority. Your contract of employment will automatically include the Burgundy Book scheme.
- If you work in a local authority-maintained foundation or voluntary aided school, your employer is the school governing body. Your contract of employment will, other than in a very small number of cases, include the Burgundy Book scheme.
- There is, however, a small number of foundation and voluntary aided schools which do not apply the Burgundy Book scheme in full but only count continuous employment at that particular school for the purposes of calculating entitlement to maternity leave and pay. Further, a small number of foundation and voluntary aided schools, which were previously grant maintained schools, have their own maternity schemes introduced at that time. These cannot, however, be less favourable than the statutory scheme set out in Section 4 of this document and teachers who worked in the school prior to it becoming grant maintained will have retained entitlement to the provisions of the Burgundy Book scheme.
- If you work in a teaching role in a centrally-organised local authority support service to schools on teachers’ pay and conditions, your employer is the local authority. Your contract of employment will automatically include the Burgundy Book scheme. Soulbury staff, however, are not employed on teachers’ conditions of service. Their maternity scheme is the one which applies to local authority staff. If you are employed on Soulbury conditions and you need advice on maternity arrangements you should contact your AdviceLine in England or NEU Cymru in Wales. References to ‘head teachers’ in this document should be read as references to the head of service for centrally employed staff.
- The Burgundy Book maternity scheme does not, however, apply to supply teachers who are employed in local authority maintained schools on a daily basis, either employed directly by the local authority or school governing body or via a teaching agency.
Teachers Working Outside the Local Authority Sector
Teachers who work outside the local authority sector will not necessarily have the Burgundy Book scheme included in their contracts of employment. Refer to the appropriate section below for relevant information.
Sixth Form Colleges
- If you work in a sixth form college, you will be subject to the Maternity Scheme agreed between the teachers’ organisations and the Sixth Form Colleges Association. This scheme replicates the Burgundy Book scheme but with one important difference. The sixth form college scheme incorporates a much wider definition of ‘continuous employment’. Teachers who work in sixth form colleges can count, therefore, previous continuous employment with most public sector organisations towards the one year’s continuous employment required for the full maternity pay and leave provisions of the scheme.
Academies and City Technology Colleges (CTCs)
CTCs and academies can establish their own maternity provisions, provided that they observe the basic statutory rights set out in Section 4.
- However, teachers who were employed at the predecessor schools and transferred to the employment of the academy or CTC when it assumed that status retain their previous contractual rights, including their rights under the Burgundy Book maternity scheme.
- Teachers who took up their post after their academy or CTC had acquired its new status are in a different position. They will be covered by the establishment’s own scheme. This may be inferior to the Burgundy Book scheme in certain respects. Continuous employment may, for example, be dated only from their date of appointment to the academy or CTC, so that teachers’ previous continuous service in the local authority sector may not count towards the qualifying period for maternity leave and pay. Academies and CTCs may, however, choose to recognise previous employment and the NEU urges them to do so.
The proprietors of independent schools are free to establish their own maternity provisions, subject only to the basic statutory maternity rights as outlined in Section 4. Some independent schools do follow the provisions of the Burgundy Book scheme but some count only continuous employment at that particular school for the purposes of calculating entitlement to maternity leave and pay. If you work in an independent school, your contract of employment will set out the maternity rights to which you are entitled.
Supply Teacher Agencies
The proprietors of supply agencies are free to establish their own maternity provisions, subject only to the basic statutory maternity rights as outlined in Section 4. If you work for a supply agency, your contract with the agency should set out the maternity rights to which you are entitled.
Statutory maternity pay
To qualify for statutory maternity pay you must have worked continuously for the same employer for at least 26 weeks by the end of the 15th week before the week the baby is due. For the definition of 'continuous employment' please refer to the glossary. To find the 15th week, look on a calendar for the Sunday before your baby is due, or the day it is due if that is a Sunday, and count back 15 Sundays from there. You must have worked at least 26 weeks with your employer by the end of that week in order to qualify for statutory maternity pay. You must still be employed in that job in the 15th week before the baby is due and you must earn at least £116.00 [2018-2019] per week on average during the 8 weeks before the 15th week. You do not lose your entitlement to SMP if you leave employment after the 15th week or do not intend to return to work.
Rate of Statutory Maternity Pay
For the first six weeks you get 90 per cent of your average pay. After that you get the basic rate of statutory maternity pay, which, at the date of publication, is £145.18 per week, for up to 33 weeks. Statutory maternity pay is only payable when you are away from work so if you work at any time during your maternity leave you will not get statutory maternity pay for that week. The exception to this is the introduction of Keeping In Touch (KIT) days, which allow women to work for up to 10 days without bringing their maternity leave to an end or losing SMP or MA.
Period of Payment
Statutory maternity pay is paid for up to 39 weeks. It is for you to decide how many weeks you wish to claim. The earliest week that you can get statutory maternity pay is the 11th week before the birth. If, however, your baby is stillborn from week 16 before the expected date of childbirth, you can now get statutory maternity pay. You are entitled to 39 weeks’ maternity pay whenever you decide to leave work. If you have a pregnancy related illness in the 4 weeks before the baby is due and this triggers your maternity leave, you will not be able to claim statutory sick pay.
If, however, your illness is not pregnancy related, you can claim statutory sick pay until your maternity leave and pay start.
How to Claim
To claim statutory maternity pay you may apply at the same time that you give notice to your employer of your pregnancy and your intention to take maternity leave. This would be by the end of the 15th week before the expected week of the birth. If you have not already requested Statutory Maternity Pay, you may write to your employer at least 28 days before you stop work, asking that you be paid statutory maternity pay. If you have not already done so, you must send them a copy of your Maternity
Certificate, Form MAT B1, which your GP or midwife will have given you. Under the Burgundy Book scheme, the first 18 weeks’ pay includes Statutory Maternity Pay and occupational maternity pay, the Statutory Maternity Pay being claimed on your behalf by your employer. If you were entitled to occupational maternity pay it would not be necessary for you to make any claim apart from informing your employer that you wished to receive statutory maternity pay when giving notification of absence.
Starting your maternity leave
The statutory provisions provide that notification of pregnancy should be given to ‘the employer’ according to arrangements determined by the employer. You should check, in advance, the arrangements for notification applying in your school or college. The NEU believes, however, that the notification requirement is satisfied if the notification is given by the due date
to your head teacher or principal.
You are required to inform your employer no later than the end of the 15th week before your expected week of childbirth or, exceptionally, as soon as you reasonably can:
- that you are pregnant;
- the date of your expected week of childbirth and, if requested, a midwife or doctor’s certificate; and
- the date on which you intend your ordinary maternity leave to commence.
The notification needs to be in writing if requested by your employer. It is preferable that you make such a written notification for the purpose of keeping a record. It is also advisable to inform your employer of your pregnancy as soon as you feel comfortable doing so. Once you have done so, your period of protection from detriment starts.
Your midwife or GP will give you a MAT B1 Form when you are about six months’ pregnant. You should be prepared to produce this to confirm your pregnancy. You can vary your leave start date by giving your employer 28 days' notice.
Date of Starting Maternity Leave
You can start your maternity leave at any time from 11 weeks before the week your baby is due. It is up to you to decide and you can work up until the week of childbirth.
Your Statutory Maternity Pay will start on the same day as your maternity leave, i.e., the date notified to the employer. The only exception is if you have a pregnancy-related illness during the last four weeks of your pregnancy. In this case, your maternity leave will be automatically triggered.
Where the baby is born before the maternity leave is due to commence, the day following the date of the birth will be regarded as the first day of maternity leave and pay.It is a legal requirement that you do not work for two weeks following the date of
childbirth. During the ordinary maternity leave period, all your contractual rights, except your normal pay, will continue as if you were not absent from work.
Your employer must, within 28 days of receiving notice of your intention to take maternity leave, give you written notice of the date that your maternity leave entitlement will end, i.e., the end of 52 weeks.
During your pregnancy
Here are some important milestones in relation to your maternity rights.
- Check whether you are entitled to the Burgundy Book maternity scheme, the statutory scheme, or both. Establish the length of your continuous service. As soon as you have notified your employer, in writing, of your pregnancy, your employer must assess any specific risks to your condition and take appropriate steps to eliminate them. Once your employer knows you are pregnant, if you are sacked for a reason connected with your pregnancy, it will automatically be unfair dismissal. You are entitled to paid time off to go to antenatal appointments. This includes relaxation and parent-craft classes. Except in the case of a first appointment, be prepared to provide an appointment card.
- If your baby is stillborn after the 24th week of pregnancy, then all maternity rights apply in full.
- To gain entitlement to Statutory Maternity Pay, you must have worked for your current employer for 26 continuous weeks by the end of this week. The end of this week is the deadline for giving notice that you are pregnant, letting your employer know your expected week of childbirth and giving written notice of the date on which you intend to start your maternity leave. Teachers taking leave under the Burgundy Book scheme must declare that they intend to return to work at the end of the period of maternity leave.
- This is the earliest you can begin your maternity leave.
- You can choose when to start your maternity leave but, if you are off sick for a pregnancy-related reason in the last four weeks of pregnancy, your employer will require you to begin your maternity leave. If your baby is born early, your maternity leave and pay starts on the following day.
After your baby is born
Here are some important things to remember regarding your maternity rights after your baby is born.
Week of childbirth
- Don’t forget to claim Child Benefit. You must put in a claim within three months of the birth for it to be paid from the date of birth.
During your post-natal maternity leave
- You only need to give notice of your return to work if you are returning earlier than at the end of the leave to which you are entitled. If you wish to return to work early, you must give your employer 21 days' written notice, if you are entitled to the Burgundy Book provisions, or 8 weeks’ written notice if you are only entitled to the statutory provisions.
- You must return at the beginning of this week. Your employer should have notified you of the exact date within 28 days of receiving your notification of pregnancy and start date of leave. If you are ill on the date of your return from maternity leave, you should inform your school, as soon as possible, and submit a medical certificate from your doctor.
Once you are back at work
- To retain maternity pay received under the Burgundy Book scheme, you are required to complete at least 13 weeks’ full time service, or its part-time equivalent, on your return to work. If you were working part-time prior to maternity leave, you are required to complete 13 weeks’ part-time service. This period includes both term time and school holidays. There is no need to return to work if you claimed SMP only and there is no need to repay SMP if you do not return for 13 weeks.
NEU's guide to maternity rights
For more detail and further advice on your maternity rights, download NEU's 'Maternity matters' guidance'.