NHS Scotland Once for Scotland workforce policies - work-life balance: consultation

5. Maternity Policy

5.1. Aim

5.1.1. The Maternity Policy aims to:

• outline the eligibility procedure employees must use to request maternity leave
• provide details about employees' statutory and contractual rights
• confirm maternity pay arrangements

5.2. Scope

5.2.1. This policy applies to all employees who meet the eligibility criteria. It also applies to bank, agency, and sessional workers who meet specific eligibility criteria.

5.2.2. This policy complies with current legislation and meets the aims of the Public Sector Equality Duty of the Equality Act 2010

5.3. Definitions

5.3.1. Employing Board is the employer of an individual who is the subject of a placement agreement.

5.3.2. Expected week of childbirth (EWC) is the week, starting on a Sunday, in which the doctor or midwife expects the individual to give birth.

5.3.3. The intended parent or intended parents are employees who cannot or choose not to conceive on their own and use surrogacy or adoption.

5.3.4. Keeping in touch (KIT) days help employees on maternity leave keep up to date with any changes at work or maintain their professional registration where appropriate. They also support employees in returning to the workplace after maternity leave.

5.3.5. A miscarriage is when an employee has a miscarriage before the 24th week of pregnancy.

5.3.6. Placement Board is the organisation providing a training placement to an individual who is not their employee. A placement agreement must be in place.

5.3.7. A pregnant employee is when an employee carries and gives birth to a baby.

5.3.8. Pre-term birth is when an employee's baby is born prematurely.

5.3.9. Qualifying week is the 15th week before the expected week of childbirth (EWC) and determines maternity pay entitlements.

5.3.10. A stillbirth is when an employee's baby is stillborn after the 24th week of pregnancy.

5.3.11. A surrogate is when an employee carries and gives birth to a baby for another person or couple.

5.4. Roles and responsibilities

5.4.1. There is a range of standard expectations which underpin all policies. Read more about standard roles and responsibilities. In addition, the following specific responsibilities apply to this policy.

5.4.2. Manager

5.4.3. The manager should:

• make sure pregnant employees, workers, agency workers, and those returning from maternity leave complete a maternity risk assessment [risk assessment to be undertaken by the manager]
• provide a prompt response to a notification of maternity leave
• plan for effective team working, including KIT days
• make sure the employee receives regular communication in departmental, organisational, and career opportunities
• action return to work considerations, such as breastfeeding [Breastfeeding Policy]

5.4.4. Employee

5.4.5. The employee should:

• notify their manager by the 15th week before their EWC with the required evidence
• talk to their manager about their intentions for maternity leave, return to work, and KIT days as applicable
• maintain their professional registration

5.4.6. Employees, workers, and agency workers should also take responsibility for their health and safety at work in support of their maternity risk assessment.

5.5. Procedure

5.5.1. The employee should notify their manager of their intention to take maternity leave by submitting a Maternity leave form [form to notify manager of intention to take maternity leave]. The employee should submit the form by the end of the 15th week before the EWC. If this does not happen, they should submit the form as soon as possible.

5.5.2. The manager should forward the maternity leave form and the employee's Maternity Certificate (MATB1 form) in line with local arrangements.

5.5.3. As soon as the employee has notified their manager that they are pregnant, they should complete a Maternity risk assessment. [risk assessment to be undertaken by the manager] It may be completed before the employee submits their maternity leave form. [form to notify manager of intention to take maternity leave]

5.5.4. The employee will receive confirmation of the maternity leave and maternity pay arrangements in writing within 28 days.

5.5.5. The written confirmation will include:

• paid and unpaid leave entitlements, or statutory entitlements if the employee does not qualify
• period of accrued annual leave to be taken by the employee at the end of the formal maternity leave period
• expected return date, based on 52 weeks of paid and unpaid leave entitlement
• early return date, if requested

5.5.6. The employee must give at least 28 days' notice if they wish to return to work before the expected return date.

5.5.7. Maternity leave

5.5.8. Maternity leave eligibility

5.5.9. All employees will have a right to take 52 weeks of maternity leave, whether or not they return to NHS employment, provided they comply with the notification requirements. No minimum length of service is required to be eligible for maternity leave. The employer cannot refuse maternity leave or change the amount of leave the employee wants to take.

5.5.10. Maternity leave entitlement

5.5.11. Employees must take at least 2 weeks of maternity leave immediately after their child's birth.

5.5.12. Employees can start maternity leave 11 weeks before their EWC unless the baby is born before the 11th week.

5.5.13. Maternity leave cannot start later than the birth of the baby.

5.5.14. An employee can change the start date of their maternity leave. To do so, they should give their manager at least 28 days' notice of the new date. If this is not achievable, the employee must inform their manager of the date change as soon as possible.

5.5.15. If an employee is absent from work wholly or partly because of pregnancy during the last 4 weeks before their EWC, the employee's maternity leave will start from the second day of continuous absence.

5.5.16. KIT days

5.5.17. Before going on maternity leave, the manager and the employee should discuss and agree voluntary arrangements for keeping in touch during the employee's leave, including:

• making them aware of developments at work and to support their return
• supporting employees to maintain their professional registration
• advising the employer about developments that may affect their intended date of return

5.5.18. Employees can return to work for up to 10 days without bringing their maternity leave or SMP to an end. KIT days are optional but help to facilitate a smooth return to work for employees returning from maternity leave.

5.5.19. An employee cannot take KIT days within the first 2 weeks following childbirth. Any KIT days taken will not extend the maternity leave period.

5.5.20. KIT days can be consecutive or not and can include training or other activities which enable the employee to keep in touch with the workplace. Working for part of any day will count as one KIT day. Managers must carry out a risk assessment for any breastfeeding employee. The employer must provide breastfeeding facilities.

5.5.21. KIT days are paid as if at work, less any Occupational Maternity Pay (OMP) or Statutory Maternity Pay (SMP) if the employee is not eligible for OMP.

5.5.22. Maternity pay

5.5.23. Maternity pay eligibility

5.5.24. To qualify for paid maternity leave, an employee must meet the following eligibility criteria. To be eligible for SMP, they must have completed at least 26 weeks of continuous employment with their employer by the end of their qualifying week. To be eligible for OMP, they must have completed 12 months' continuous service with one or more NHS employer at the beginning of the 11th week before the EWC.

5.5.25. Statutory Maternity Pay (SMP)

5.5.26. SMP is a benefit for employees on maternity leave. The UK Government determines the conditions and amount, but the employer pays it:

• The first 6 weeks of maternity leave are paid at 90% of the employee's normal weekly earnings.
• The next 33 weeks are paid at a standard SMP rate, or 90% of normal weekly earnings if this is less.

5.5.27. Normal weekly earnings are calculated based on a statutory calculation which takes into account earnings over the 8 weeks before the end of the qualifying week.

5.5.28. Employer and employee pension contributions will continue to be paid for the first 39 weeks.

5.5.29. SMP may start on any day of the week.

5.5.30. To qualify for SMP, an employee must have:

• completed at least 26 weeks of continuous employment with their NHS employer
• average earnings above the lower earnings limit for National Insurance contributions during the 8 weeks before the end of the qualifying week
• followed the application procedures set out in this policy.

5.5.31. All eligible employees will receive SMP regardless of whether they intend to return to work after maternity leave.

5.5.32. Occupational Maternity Pay (OMP)

5.5.33. OMP gives enhanced benefits to employees who intend to return to work for at least 3 months after maternity leave.

5.5.34. Employees will receive full pay for the first 8 weeks of maternity leave. They will also get SMP or maternity allowance including any dependents' allowances. The total receivable will not exceed full pay.

5.5.35. For the next 18 weeks, employees will receive half pay. They will also get SMP or maternity allowance including any dependents' allowances. The total receivable will not exceed full pay.

5.5.36. For the next 13 weeks of maternity leave, employees will receive any SMP or maternity allowance entitlement including any dependents' allowances.

5.5.37. To qualify for OMP, employees must have completed 12 months' continuous service with one or more NHS employer at the beginning of the 11th week before the expected week of childbirth.

5.5.38. The employee must also notify their employer by completing the maternity leave form [form to notify manager of intention to take maternity leave]. They must complete the form before the end of the 15th week before their EWC. If it is not achievable, they must complete it as soon as possible.

5.5.39. To calculate continuous service eligibility criteria, the employer should consult the NHS Terms and Conditions of Service Handbook.

5.5.40. Unpaid leave

5.5.41. In addition to a period of paid leave, eligible employees are also entitled to take a further 13 weeks of unpaid leave to bring their total maternity leave period to 52 weeks. In exceptional circumstances, unpaid leave may be extended by local agreement. For example, where employees have sick pre-term babies or multiple births.

5.5.42. By prior agreement with the employer, OMP may be paid in a different way. For example, a combination of full pay and half pay, or a fixed amount spread equally over the maternity leave period.

5.5.43. Employees not returning to NHS employment

5.5.44. If an employee does not return to NHS employment for a minimum of 3 months after their maternity leave has ended, the individual must repay their OMP maternity pay in accordance with the NHS Terms and Conditions of Service Handbook.

5.5.45. Maternity allowance (MA)

5.5.46. Employees who do not meet SMP or OMP criteria should contact their local Jobcentre Plus office to ask about MA. The employer does not pay MA. Instead, payment is paid directly by the UK Government.

5.5.47. Bank and agency staff

5.5.48. Bank staff have no entitlement to OMP or maternity leave. However, they may be entitled to SMP, depending on their level of earnings. The employer may review entitlement to OMP in exceptional cases, such as if the worker can demonstrate regular work patterns over an extended period.

5.5.49. Agency staff may be entitled to maternity leave and SMP if they are considered an employee of the agency. This should be checked with the relevant agency.

5.5.50. Returning to work

5.5.51. Employees returning from maternity leave have the right to return to their job under their original contract and on no less favourable terms and conditions.

5.5.52. Employees on a fixed-term or training contract

5.5.53. Employees may be on a fixed-term or training contract that expires the 11th week before their EWC. If they satisfy the eligibility criteria, their contract will be extended by such period as to allow them to be eligible to receive 52 weeks of maternity leave, and OMP or SMP.

5.5.54. Rotational training contracts

5.5.55. Employees such as doctors and dentists on the Scottish Medical Training Programme are employed on regional training contracts. They must notify their manager within the Placement Board about their intention to take maternity leave. The Placement Board will arrange to do a Maternity risk assessment. [risk assessment to be undertaken by the manager]

5.5.56. The Placement Board will also notify the Employing Board of the employees' intention to take maternity leave. The Employing Board will confirm the employee's maternity pay entitlement.

5.5.57. An employee on a rotational training contract should refer to the NHS Terms and Conditions of Service Handbook.

5.5.58. Occupational child bereavement leave

5.5.59. Employees who experience a stillbirth from the 24th week of pregnancy will be eligible for paid occupational child bereavement leave. It is in addition to maternity pay and leave. Employees and managers should refer to the Special Leave Policy. [Special Leave Policy]

5.5.60. In Vitro Fertilisation (IVF)

5.5.61. Employees attending medical appointments for IVF treatment should refer to the Special Leave Policy. [Special Leave Policy]

5.5.62. An employee becomes pregnant once they have reached the embryo transfer stage. The employee should notify their manager of their pregnancy as outlined in this policy.

5.5.63. Antenatal care

5.5.64. Pregnant employees and eligible agency workers have the right to paid time off for antenatal care. Antenatal care may include relaxation and parentcraft classes that the employee's doctor, midwife, or health visitor has advised them to attend, in addition to medical examinations. To be eligible, agency workers must have completed their 12-week qualifying period. In addition, they must not take on a different role with the hirer or have breaks during or between assignments.

5.5.65. Employees and eligible agency workers who need time off for antenatal care must provide a certificate from their doctor, registered midwife, or registered health visitor. Except for the first appointment, they should also produce evidence of the appointment, such as a medical certificate or appointment card.

5.5.66. Employees must give their manager advance notice of antenatal appointments. They must also try to arrange appointments outside working hours or at the start or end of the working day. However, it is recognised that this may not always be possible.

5.5.67. Eligibility for employees to be accompanied at antenatal appointments is provided in the New Parent Support Policy. [New Parent Support Policy]

5.5.68. Postnatal care

5.5.69. Employees who have recently given birth should have paid time off for postnatal care. It may include attendance at health clinics. Employees must provide evidence of appointments if required.

5.5.70. The employee should give their manager advance notice of postnatal appointments. They must also try to arrange them outside working hours, or at the start or end of the working day. However, it is recognised that this may not always be possible.

5.5.71. Surrogacy

5.5.72. A surrogate employee is entitled to maternity leave and pay as outlined in this policy.

5.5.73. When the surrogate employee notifies their manager of their pregnancy, they must follow the procedures outlined in this policy.

5.5.74. Resolution of disagreements

5.5.75. Should a disagreement arise, the employee has the right to raise matters under the Grievance Policy. It may be appropriate for either party to seek advice on resolving the matter from HR colleagues or a trade union representative. They should seek early resolution wherever possible.

5.5.76. Related policies:

• New Parent Support Policy
• Parental Leave Policy
• Shared Maternity and Shared Adoption Policy
• Adoption, Fostering and Kinship Policy
• Special Leave Policy
• Attendance Policy

5.6. Supporting documentation

It is proposed that the supporting documents listed below will be developed to support the policy. Supporting documents are not part of the consultation. These will be drafted following the consultation when responses have been analysed and the policy is developed in a final draft.

Employee guide

Descriptor: guide to help employees use and understand the Maternity Policy.

Manager guide

Descriptor: guide to help managers use and understand the Maternity Policy.

Maternity policy flowchart

Descriptor: visual and text alternative flowcharts outlining the key steps in the Maternity Policy.

Maternity leave form

Descriptor: form to notify manager of intention to take maternity leave.

Maternity risk assessment

Descriptor: risk assessment to be undertaken by the manager. This covers (1) on notification of pregnancy, (2) return to work within 6 months of having a baby and (3) breastfeeding.

Calculation tools

Descriptor: tools to support the calculation of maternity leave.

5.7. Consultation questions

We are inviting responses to this consultation using the Scottish Government's consultation hub. The following questions are set.

In your response, all questions have the option to answer yes or no. You are invited to provide further comment in a free text box. If you wish to make specific reference to a section of the policy, please quote the relevant numbered line in this consultation document.

1. Do you feel there are any gaps in the policy?

2. Do you feel there are any gaps in the proposed list of supporting documents?

3. Do you have any other comments to make on the policy?

4. Do you have any views on the potential impacts of this policy on equalities groups?

It is against the law to discriminate against someone because of: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation. These are protected characteristics under the Equality Act, 2010.