The Statutory Maternity Pay (General) Regulations 1986

Made: 17th November 1986

Laid before Parliament: 24th November 1986

Coming into Operation

The Secretary of State for Social Services, in exercise of the powers conferred by sections 46(4), (7) and (8), 47(1), (3), (6) and (7), 48(3) and (6), 50(1), (2), (4) and (5), 51(1)(g), (k), (n) and (r) and (4), 54(1), 83(1) and 84(1) of, and paragraphs 6, 8 and 12(3) of Schedule 4 to, the Social Security Act 1986, and of all other powers enabling him in that behalf, by this instrument, which contains only regulations made under the sections of the Social Security Act 1986 specified above and provisions consequential upon those sections and before the end of a period of 12 months from the commencement of those sections, makes the following regulations:—

PART I — INTRODUCTION

Citation, commencement and interpretation

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• (1) These regulations may be cited as the Statutory Maternity Pay (General) Regulations 1986 and shall come into operation in the case of regulations 1, 22 and 23 on 15th March 1987, and in the case of the remainder of the regulations on 6th April 1987.

• (2) In these regulations, unless the context otherwise requires—

• “the 1975 Act” means the Social Security Act 1975;

• “the 1978 Act” means the Employment Protection (Consolidation) Act 1978;

• “the 1986 Act” means the Social Security Act 1986.

• “the Contributions and Benefits Act” means the Social Security Contributions and Benefits Act 1992.

• “statutory maternity leave” means ordinary maternity leave and any additional maternity leave under, respectively, sections 71 and 73 of the Employment Rights Act 1996.

• (3) Unless the context otherwise requires, any references in these regulations to—

• (a) a numbered regulation is a reference to the regulation bearing that number in these regulations and any reference in a regulation to a numbered paragraph is a reference to the paragraph of that regulation bearing that number;

• (b) any provision made by or contained in an enactment or instrument shall be construed as a reference to that provision as amended or extended by any enactment or instrument and as including a reference to any provision which it re-enacts or replaces, or which may re-enact or replace it, with or without modifications.

PART II — ENTITLEMENT

The Maternity Pay Period

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• (1) Subject to paragraphs (3) to (5), where—

• (a) a woman gives notice to her employer of the date from which she expects his liability to pay her statutory maternity pay to begin; and

• (b) in conformity with that notice ceases to work for him in a week which is later than the 12th week before the expected week of confinement,

the first day of the maternity pay period shall be the day on which she expects his liability to pay her statutory maternity pay to begin in conformity with that notice provided that day is not later than the day immediately following the day on which she is confined.

• (2) The maternity pay period shall be a period of 39 consecutive weeks.

• (3) In a case where a woman is confined—

• (a) before the 11th week before the expected week of confinement; or

• (b) after the 12th week before the expected week of confinement and the confinement occurs on a day which precedes that mentioned in a notice given to her employer as being the day on which she expects his liability to pay her statutory maternity pay to begin,

section 165 of the Contributions and Benefits Act shall have effect so that the first day of the maternity pay period shall be the day following the day on which she is so confined.

• (4) In a case where a woman is absent from work wholly or partly because of pregnancy or confinement on any day—

• (a) which falls on or after the beginning of the 4th week before the expected week of confinement; but

• (b) not later than the day immediately following the day on which she is confined,

the first day of the maternity pay period shall be the day following the day on which she is so absent.

• (5) In a case where a woman leaves her employment—

• (a) at any time falling after the beginning of the 11th week before the expected week of confinement and before the start of the maternity pay period, but

• (b) not later than the day on which she is confined,

the first day of the maternity pay period shall be the day following the day on which she leaves her employment.

Contract of service ended for the purpose of avoiding liability for statutory maternity pay

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• (1) A former employer shall be liable to make payments of statutory maternity pay to any woman who was employed by him for a continuous period of at least 8 weeks and whose contract of service with him was brought to an end by the former employer solely or mainly for the purpose of avoiding liability for statutory maternity pay.

• (2) In order to determine the amount payable by the former employer—

• (a) the woman shall be deemed for the purposes of Part V of the 1986 Act to have been employed by him from the date her employment with him ended until the end of the week immediately preceding the 14th week before the expected week of confinement on the same terms and conditions of employment as those subsisting immediately before her employment ended, and

• (b) her normal weekly earnings for the period of 8 weeks immediately preceding the 14th week before the expected week of confinement shall for those purposes be calculated by reference to her normal weekly earnings for the period of 8 weeks ending with the last day in respect of which she was paid under her former contract of service.

Modification of entitlement provisions

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• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) In relation to a woman in employed earner's employment who was confined before the 14th week before the expected week of confinement section 164(2)(a) and (b) of the Contributions and Benefits Act shall have effect as if for the conditions there set out, there was substituted the conditions that—

• (a) she would but for her confinement have been in employed earner's employment with an employer for a continuous period of at least 26 weeks ending with the week immediately preceding the 14th week before the expected week of confinement, and

• (b) her normal weekly earnings for the period of 8 weeks ending with the week immediately preceding the week of her confinement are not less than the lower earnings limit in force under under section 5(1)(a) of the Contributions and Benefits Act immediately before the commencement of the week of her confinement.

• (3) In relation to a woman to whom paragraph (2) applies, section 166 of the Contributions and Benefits Act shall be modified so that subsection (2) has effect as if the reference to the period of 8 weeks immediately preceding the 14th week before the expected week of confinement was a reference to the period of 8 weeks immediately preceding the week in which her confinement occurred.

Treatment of more than one contract of service as one

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Where 2 or more contracts of service exist concurrently between one employer and one employee, they shall be treated as one for the purposes of Part V of the 1986 Act, except where, by virtue of regulation 11 of the Social Security (Contributions) Regulations 1979 the earnings from those contracts of service are not aggregated for the purposes of earnings-related contributions.

Lower rate of statutory maternity pay

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The rate of statutory maternity pay prescribed under section 166(1)(b) of the Contributions and Benefits Act is a weekly rate of £187.18.

Liability of Secretary of State to pay Statutory Maternity Pay

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• (1) Where—

• (a) an adjudicating authority has determined that an employer is liable to make payments of statutory maternity pay to a woman, and

• (b) the time for appealing against that determination has expired, and

• (c) no appeal against the determination has been lodged or leave to appeal against the determination is required and has been refused,

then for any week in respect of which the employer was liable to make payments of statutory maternity pay but did not do so, and for any subsequent weeks in the maternity pay period the liability to make those payments shall, notwithstanding section 46(3) of the 1986 Act, be that of the Secretary of State and not the employer.

• (2) In paragraph (1) adjudicating authority means, as the case may be, the Chief or any other adjudication officer, the First-tier Tribunal or the Upper Tribunal.

• (3) Liability to make payments of statutory maternity pay shall, notwithstanding section 46(3) of the 1986 Act, be a liability of the Secretary of State and not the employer as from the week in which the employer first becomes insolvent until the end of the maternity pay period.

• (4) For the purposes of paragraph (3) an employer shall be taken to be insolvent if, and only if—

• (a) in England and Wales—

• (i) he has been adjudged bankrupt or has made a composition or arrangement with his creditors;

• (ii) he has died and his estate falls to be administered in accordance with an order under section 421 of the Insolvency Act 1986; or

• (iii) where an employer is a company, a winding-up order ... is made or a resolution for voluntary winding-up is passed with respect to it or it enters administration, or a receiver or manager of its undertaking is duly appointed, or possession is taken by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company comprised in or subject to the charge or a voluntary arrangement proposed for the purposes of Part I of the Insolvency Act 1986 is approved under that Part;

• (b) in Scotland—

• (i) an award of sequestration is made on his estate or he executes a trust deed for his creditors or enters into a composition contract;

• (ii) he has died and a judicial factor appointed under section 11A of the Judicial Factors (Scotland) Act 1889[^f00001] is required by that section to divide his insolvent estate among his creditors; or

• (iii) where the employer is a company, a winding-up order ... is made or a resolution for voluntary winding-up is passed with respect to it or it enters administration or a receiver of its undertaking is duly appointed or a voluntary arrangement proposed for the purposes of Part I of the Insolvency Act 1986 is approved under that Part.

Work after confinement

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• (1) Where in the week immediately preceding the 14th week before the expected week of confinement a woman had 2 or more employers but one or more of them were not liable to make payments to her of statutory maternity pay (“non-liable employer”), section 47(6) of the 1986 Act shall not apply in respect of any week after the week of confinement but within the maternity pay period in which she works only for a non-liable employer.

• (2) Where after her confinement a woman—

• (a) works for an employer who is not liable to pay her statutory maternity pay and is not a non-liable employer, but

• (b) before the end of her maternity pay period ceases to work for that employer,

the person who before she commenced work was liable to make payments of statutory maternity pay to her shall, notwithstanding section 46 of the 1986 Act, not be liable to make such payments to her for any weeks in the maternity pay period after she ceases work.

No liability to pay statutory maternity pay

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Notwithstanding the provisions of section 46(1) of the 1986 Act, no liability to make payments of statutory maternity pay to a woman shall arise in respect of a week within the maternity pay period for any part of which she is detained in legal custody or sentenced to a term of imprisonment (except where the sentence is suspended), or of any subsequent week within that period.

Death of woman

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An employer shall not be liable to make payments of statutory maternity pay in respect of a woman for any week within the maternity pay period which falls after the week in which she dies.

PART III — CONTINUOUS EMPLOYMENT AND NORMAL WORKING HOURS

Continuous employment

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• (1) Subject to the following provisions of this regulation, where in any week a woman is, for the whole or part of the week,—

• (a) incapable of work in consequence of sickness or injury, or

• (b) absent from work on account of a temporary cessation of work, or

• (c) absent from work in circumstances such that, by arrangement or custom, she is regarded as continuing in the employment of her employer for all or any purpose, or

• (d) absent from work wholly or partly because of pregnancy or confinement, or

• (e) absent from work in consequence of taking paternity leave, adoption leave, shared parental leave, parental bereavement leave or parental leave under Part 8 of the Employment Rights Act 1996,

and returns to work for her employer after the incapacity for or absence from work, that week shall be treated for the purposes of Part V of the 1986 Act as part of a continuous period of employment with that employer, notwithstanding that no contract of service exists with that employer in respect of that week.

• (2) Incapacity for work which lasts for more than 26 consecutive weeks shall not count for the purposes of paragraph (1)(a).

• (3) Paragraph (1)(d) shall only apply to a woman who—

• (a) has a contract of service with the same employer both before and after her confinement but not during any period of absence from work due to her confinement and the period between those contracts does not exceed 26 weeks, or

• (b) returns to work in accordance with section 45(1) of the 1978 Act or in pursuance of an offer made in circumstances described in section 56A(2) of that Act after a period of absence from work wholly or partly occasioned by pregnancy or confinement.

• (3A) Where a woman who is pregnant—

• (a) is an employee in an employed earner’s employment in which the custom is for the employer

• (i) to offer work for a fixed period of not more than 26 consecutive weeks;

• (ii) to offer work for such period on 2 or more occasions in a year for periods which do not overlap; and

• (iii) to offer the work available to those persons who had worked for him during the last or a recent such period, but

• (b) is absent from work—

• (i) wholly or partly because of the pregnancy or her confinement, or

• (ii) because of incapacity arising from some specific disease or bodily or mental disablement,

then in her case paragraph (1) shall apply as if the words “and returns to work for an employer after the incapacity for or absence from work” were omitted and paragraph (4) shall not apply.

• (4) where a woman is employed under a contract of service for part only of the week immediately preceding the 14th week before the expected week of confinement, the whole of that week shall count in computing any period of continuous employment for the purposes of Part V of the 1986 Act.

Continuous employment and unfair dismissal

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• (1) This regulation applies to a woman in relation to whose dismissal an action is commenced which consists—

• (a) of the presentation by her of a complaint under section 67(1) of the 1978 Act; or

• (b) of her making a claim in accordance with a dismissals procedure agreement designated by an order under section 65 of that Act; or

• (c) of any action taken by a conciliation officer under section 134(3) of that Act; or

• (d) of a decision arising out of the use of a statutory dispute resolution procedure contained in Schedule 2 to the Employment Act 2002 in a case where, in accordance with the Employment Act 2002 (Dispute Resolution) Regulations 2004, such a procedure applies.

• (2) If in consequence of an action of the kind specified in paragraph (1) a woman is reinstated or re-engaged by her employer or by a successor or associated employer of that employer the continuity of her employment shall be preserved for the purposes of Part V of the 1986 Act and any week which falls within the interval beginning with the effective date of termination and ending with the date of reinstatement or re-engagement, as the case may be, shall count in the computation of her period of continuous employment.

• (3) In this regulation—

• “successor” and “dismissals procedure agreement” have the same meanings as in section 30(3) and (4) of the Trade Union and Labour Relations Act 1974, and

• “associated employer” shall be construed in accordance with section 153(4) of the 1978 Act.

Continuous employment and stoppages of work

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• (1) Where for any week or part of a week a woman does no work because there is, within the meaning of section 19 of the 1975 Act a stoppage of work due to a trade dispute at her place of employment the continuity of her employment shall, subject to paragraph (2), be treated as continuing throughout the stoppage but, subject to paragraph (3), no such week shall count in the computation of her period of employment.

• (2) Subject to paragraph (3), where during the stoppage of work a woman is dismissed from her employment, the continuity of her employment shall not be treated in accordance with paragraph (1) as continuing beyond the commencement of the day she stopped work.

• (3) The provisions of paragraph (1) to the extent that they provide that a week in which a stoppage of work occurred shall not count in the computation of a period of employment, and paragraph (2) shall not apply to a woman who proves that at no time did she have a direct interest in the trade dispute in question.

Change of employer

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A woman's employment shall, notwithstanding the change of employer, be treated as continuous employment with the second employer where—

• (a) the employer's trade or business or an undertaking (whether or not it is an undertaking established by or under an Act of Parliament) is transferred from one person to another;

• (b) by or under an Act of Parliament, whether public or local and whenever passed, a contract of employment between any body corporate and the woman is modified and some other body corporate is substituted as her employer;

• (c) on the death of her employer, the woman is taken into the employment of the personal representatives or trustees of the deceased;