HR & Employment Law Insights

Helping family businesses, start-ups, charities, social enterprises, and other growing or established businesses throughout the UK make sense of HR and Employment Law challenges.

We get asked HR related questions every day and each week we will be sharing our top question of the week that we have been asked here at The HR Booth.

This week we answer the question "What happens if an employee is not eligible for SMP?"

Question

We had a girl who started with us but didn’t tell the truth as she was only with us for a week and then announced she was pregnant, anyway I know she is not entitled to maternity leave from ourselves but has now advised that she is only on maternity leave and will be coming back to her post, I have advised that I cannot guarantee this but I don’t know if it is right or not, however I kind of logically thought if I am not responsible for her maternity pay then do I have to keep her position open?

What I did say to her was that I could not guarantee this but I would envisage that we probably would have a position but couldn’t guarantee this.

Answer

As she does not have relevant service she's not entitled to SMP, but she is entitled to the full 52 weeks maternity leave and may be eligible for maternity allowance which she claims through the government.  To do so, you should give her an SMP1 form which states she can't receive SMP due to her service.  She would then apply for maternity allowance.

We do have to keep a role open for her in the same way you would any other employee, and we should know what her intentions are regarding maternity leave in terms of how long she intends to take off.  She can change this giving the normal 8 weeks notice.

It is good practice to sit down with her to find out exactly when the baby is due and what are intentions are regarding maternity leave.

She will also be eligible for shared parental leave which means her and her partner can share the leave.

Please ensure you also carry out a risk assessment and let me know if there are any adjustments that need to be made.

YOUR TURN

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