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Maternity, paternity and adoption: your rights during leave

This guide for RCN members covers your rights during maternity, paternity and adoption leave, as well as planning your return to work.

Your contract of employment

The terms and conditions of your contract of employment remain the same and apply in full while on maternity, paternity and adoption leave, with the following exceptions:

  • the obligation for you to attend work
  • your right to receive your normal salary. For example, you will be entitled to any salary increases that occur whilst on maternity leave, even though you may not benefit from these financially until you return to work.

Your employer must also inform you of any promotion opportunities and changes to your terms and conditions, including reorganisations.

You must not be treated unfairly because you have taken maternity, paternity or adoption leave.

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Annual leave

Maternity leave

You still accrue annual leave if you are taking compulsory or ordinary maternity leave. This accrued annual leave must be taken at a time other than during your maternity leave.  You must be allowed to carry over any unused part of your statutory leave entitlement of 28 days (including bank holidays). Your contract may say that you are entitled to more than the statutory entitlement, so it's important to check your local policy for carry over provisions. You must come to an arrangement with your employer as to when you take your annual leave. Please contact us for further advice if this becomes a problem.

Paternity and adoption leave

As above, you should still accrue annual leave when taking paternity or adoption leave.

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Sickness

Sickness during the SMP period

You cannot receive Statutory Sick Pay (SSP) or contractual sick pay whilst receiving SMP. If you normally receive contractual sick pay, it is at your employer’s discretion whether they choose to top up your statutory maternity pay with occupational sick pay.

Sickness outside the SMP period

SSP could be paid during a period of maternity leave without pay. For example, if your SMP has finished and you are not receiving any pay, you should apply for SSP. You should inform your employer that you are sick and let them have whatever evidence they require from you. If you fall ill whilst on unpaid additional maternity leave, you will not generally be eligible to receive any contractual sick pay. However, if you have given the required notice that you will be returning to work before the expiry of your additional maternity leave period then you may be eligible for sick pay if you are unable to return on the due date owing to sickness. Check your local maternity policy and sick pay policy.

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Maternity leave and redundancy pay

If a redundancy situation occurs whilst you are on maternity leave, you are entitled to priority treatment. For example, if your employer has a suitable vacancy, they must offer it to you in preference to any other employee who is similarly affected by the redundancy situation but who is not absent on maternity leave. The vacancy must be suitable, appropriate for you to accept and must not be substantially less favourable than your previous job or original contract.

Where no vacancy exists, the employer can dismiss you on the grounds of redundancy. However, care must be taken that you are properly consulted and given correct notice. You are entitled to receive a written statement of the reasons for your dismissal without having to request it, regardless of your length of service. Provided you have the necessary two years service, you will also be entitled to a statutory redundancy payment. Once the dismissal takes effect, the maternity leave period automatically comes to an end. If your employer offers contractual redundancy pay you may also be entitled to this. You should check your employer’s local policy in relation to this.

You are not entitled to additional protection if a redundancy situation occurs before you start your maternity leave. Nevertheless, protection against discrimination because of pregnancy continues while you are pregnant.

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Pregnancy during maternity leave

If you become pregnant while on maternity leave, you retain the right to ordinary and additional maternity leave for the second pregnancy.

Maternity leave does not break your continuity of employment, so your right to maternity leave for this baby will be based on your total service with your employer. You will receive SMP if you meet the normal conditions. If your employer offers additional contractual maternity pay you will be entitled to this if you meet the qualifying criteria. You should check your employer’s local policy in relation to this.

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Students

If, while studying, you are working on the bank, for an agency, or on a self employed basis, you may have satisfied the criteria for eligibility for either SMP or MA. Contact your local Jobcentre Plus or social security office for advice on benefits you may be eligible to receive.

Our Membership Support Services department can also offer advice on benefits. Please call us if you need this service.

In England, Wales and Scotland, student nurses receiving an NHS bursary are entitled to apply to take leave from their course for up to 45 weeks and still receive their bursary. No such arrangement exists in Northern Ireland, but the RCN is lobbying for this to be introduced.

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Returning to work

You must always check your contract of employment for information on notice periods for your return to work after maternity, additional paternity or adoption leave.

After maternity leave

You have the right to return to the same job on the same terms and conditions when returning from OML (the first 26 weeks of leave). On returning to work during or at the end of AML (the last 26 weeks), you are also entitled to return to your previous job on the same terms and conditions. If this is not reasonably practicable, you should be offered work on no less favourable terms. You would have a right to another job which is both suitable and appropriate for you to do in the circumstances.

When you resume work after OML and AML you are entitled to benefit from any general improvements to the rate of pay (or other terms and conditions) that you would have received had you been at work.

When to return: non-NHS employees

If you are employed outside the NHS read your contract of employment or local policy to determine when you need to return and the notice period you need to give. 

When to return: NHS staff employed under Agenda for Change (AfC)

Section 15 of the AfC handbook states that to claim NHS contractual maternity pay you must intend to return to work with the same or another NHS employer for a minimum period of three months after your maternity leave has ended. If you do not return to NHS employment within 15 months of the beginning of your maternity leave, then you will be liable to refund the whole of your maternity pay (except for the SMP or MA received).

You may return to work early if you give at least 28 days notice, although some local policies require eight weeks’ notice. Furthermore, you have the right to return your job under your original contract and on no less favourable terms and conditions.

If you return at the end of your full 52 weeks of maternity leave and have not told your employer that you wish to go back at any other time, you do not need to provide any further notice.

Leaving your job or deciding not to return

If you do not want to go back to work after the birth of your baby, this will not affect your right to SMP/MA. Check your contract for any clause which requires you to pay back any contractual maternity pay if you decide not to return - such a clause does exist within the AfC contract, as explained above. If you are undecided, keep your options open and ensure you stick to the notice requirements.

Flexible working

All employees can ask their employer for flexible working arrangements to help them manage a return to work with young children. You may also have the statutory right to request a flexible working pattern. To apply for flexible working under the statutory process you must:

  • be an employee, but not in the armed forces
  • have worked for your employer continuously for 26 weeks before applying
  • not have made another application to work flexibly for that employer in the last 12 months.

Employed agency workers also now have the right to apply for flexible working when they return to work following a period of parental leave. It is important to note that your employer can refuse your request if they follow the correct procedure and have a legitimate business reason.

Further information can be found in our advice guide on flexible working.

Parental leave

Parental leave allows you to take unpaid leave from work to care for children or to spend more time with them. To qualify for parental leave you will need to be an employee and have completed one year’s continuous service with your employer at the date of request. For each child you have, you are entitled to take up to 18 weeks unpaid parental leave to care for them up until their fifth birthday. Parents of disabled children can take 18 weeks up to the child’s 18th birthday. If your child is adopted then you can taken 18 weeks up to the fifth year of their placement or until their 18th birthday, whichever comes sooner.

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Further information

Maternity leave and pay

Shared parental leave

Maternity, work and family advice

Please note that maternity and paternity arrangements in Northern Ireland, although similar to those in Great Britain, do have some significant differences. Visit the Department for Employment and Learning website (www.delni.gov.uk) for information about maternity rights in Northern Ireland.

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Need more advice?

Call RCN Direct on: 0345 772 6100