1986 No. 1960
The Statutory Maternity Pay (General) Regulations 1986
Made
Laid before Parliament
Coming into Operation
Regulations 1, 22 and 23
remainder
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:—C1
PART IINTRODUCTION
Citation, commencement and interpretation1
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.
F10“the Contributions and Benefits Act” means the Social Security Contributions and Benefits Act 1992.
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 IIENTITLEMENT
The Maternity Pay Period2
1
F14Subject to paragraphs (3) to (5), where a woman gives notice to her employer that she intends to stop work and does in fact stop work because of her pregnancy in a week which is later than the 12th week before the expected week of confinement, then the first week in the maternity pay period shall be the week following the week in which she stopped work, F15or the week immediately following the week in which she is confined, whichever is the earlier.
F162
The maternity pay period shall be a period of 18 consecutive weeks.
3
Where—
a
a woman is confined before the 11th week before the expected week of confinement, or
b
is confined after the 12th week F17... before the expected week of confinement and the confinement occurs in a week which precedes that mentioned in a notice given to her employer as being the week she intends to give up work,
the first week in the maternity pay period shall be the week after the week in which she is confined.
F184
Subject to paragraph (5), where a woman is absent from work wholly or partly because of pregnancy or confinement on any day which falls on or after the beginning of the 6th week before the expected week of confinement, but not later than the week immediately following the week in which she is confined, the first week of her maternity pay period shall be the week which includes that day.
F185
Where–
a
a woman is employed by an employer who is liable to pay her statutory maternity pay; and
b
she is absent from work wholly or partly because of pregnancy or confinement on any day which falls on or after the beginning of the 6th week before the expected week of confinement but not later than the week immediately following the week in which she is confined; and
c
she has worked for that employer or is entitled to statutory sick pay, on any day which falls on or after the start of the week in which the absence mentioned in sub–paragraph (b) above falls,
the first week of her maternity pay period shall be the week next following that day.
Contract of service ended for the purpose of avoiding liability for statutory maternity pay3
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 provisions4
F191
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
In relation to a woman in employed earner's employment who was confined before the 14th week before the expected week of confinement F20section 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 F21under section 5(1)(a) of the Contributions and Benefits Act immediately before the commencement of the week of her confinement.
F22F23
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 one5
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 pay6
The lower rate of statutory maternity pay is a weekly rate of F45£60.20.
Liability of Secretary of State to pay Statutory Maternity Pay7
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, a Social Security Appeal Tribunal or the Chief or any other Social Security Commissioner.
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 or an administration order is made or a resolution for voluntary winding-up is passed with respect to it, 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 18891 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 or an administration order is made or a resolution for voluntary winding-up is passed with respect to it 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 confinement8
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 pay9
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 woman10
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 IIICONTINUOUS EMPLOYMENT AND NORMAL WORKING HOURS
Continuous employment11
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,
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.
F53A
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 dismissal12
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.
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 work13
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 employer14
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;
d
the woman is employed by partners, personal representatives or trustees and there is a change in the partners, or, as the case may be, personal representatives or trustees;
e
the woman is taken into the employment of an employer who is, at the time she entered his employment, an associated employer of her previous employer, and for this purpose “associated employer” shall be construed in accordance with section 153(4) of the 1978 Act;
f
on the termination of her employment with an employer she is taken into the employment of another employer and F6those employers are the governors of a school maintained by a local education authority and that authority.
Reinstatement after service with the armed forces etc15
If a woman who is entitled to apply to her former employer under the Reserve Forces (Safeguard of Employment) Act 1985 enters the employment of that employer not later than the 6 month period mentioned in section 1(4)(b) of that Act, her previous period of employment with that employer (or if there was more than one such period, the last of those periods) and the period of employment beginning in the said period of 6 months shall be treated as continuous.
Normal working weeks16
1
For the purposes of section 48(5) of the 1986 Act, a woman's contract of service shall be treated as not normally involving or having involved employment for less than 16 hours weekly where she is normally employed for 16 hours or more weekly.
2
Where a woman's relations with her employer were governed for a continuous period of at least 2 years by a contract of service which normally involved employment for not less than 16 hours weekly and this period was followed by a further period, ending with the week immediately preceding the 14th week before the expected week of confinement, in which her relations with that employer were governed by a contract of service which normally involved employment for less than 16 hours, but not less than 8 hours weekly, then her contract of service shall be treated for the purpose of section 48(5) of the 1986 Act as not normally involving or having involved employment for less than 16 hours weekly.
3
Where a woman's relations with her employer are or were governed for a continuous period of at least 2 years by a contract of service which involved
a
for not more than 26 weeks in that period, employment for 8 hours or more but less than 16 hours weekly, and
b
for the whole of the remainder of that period employment for not less than 16 hours weekly,
the contract of service shall be treated for the purposes of section 48(5) of the 1986 Act as not normally involving or having involved employment for less than 16 hours weekly.
F3Meaning of “week”16A
Where a woman has been in employed earner’s employment with the same employer in each of 26 consecutive weeks (but no more than 26 weeks) ending with the week immediately preceding the 14th week before the expected week of confinement then for the purpose of determining whether that employment amounts to a continuous period of at least 26 weeks, the first of those 26 weeks shall be a period commencing on the first day of her employment with the employer and ending at midnight on the first Saturday thereafter or on that day where her first day is a Saturday.
PART IVGENERAL PROVISIONS
Meaning of “employee”17
1
In a case where, and in so far as, a woman over the age of 16 is treated as an employed earner by virtue of the Social Security (Categorisation of Earners) Regulations 19782 she shall be treated as an employee for the purposes of Part V of the 1986 Act and in a case where, and in so far as, such a woman is treated otherwise than as an employed earner by virtue of those regulations, she shall not be treated as an employee for the purposes of Part V.
2
Any woman who is in employed earner's employment within the meaning of the 1975 Act under a contract of apprenticeship shall be treated as an employee for the purposes of Part V.
3
A woman who is in employed earner's employment within the meaning of the 1975 Act but whose employer—
a
does not fulfil the conditions prescribed in regulation 119(1)(b) of the Social Security (Contributions) Regulations 19793 as to residence or presence in Great Britain, or
b
is a woman who, by reason of any international treaty to which the United Kingdom is a party or of any international convention binding the United Kingdom—
i
is exempt from the provisions of the 1975 Act, or
ii
is a woman against whom the provisions of that Act are not enforceable,
shall not be treated as an employee for the purposes of Part V of the 1986 Act.
Treatment of two or more employers as one18
1
In a case where the earnings paid to a woman in respect of 2 or more employments are aggregated and treated as a single payment of earnings under regulation 12(1) of the Social Security (Contributions) Regulations 1979, the employers of the woman in respect of those employments shall be treated as one for all purposes of Part V of the 1986 Act.
2
Where 2 or more employers are treated as one under the provisions of paragraph (1), liability for statutory maternity pay payable by them to a woman shall be apportioned between them in such proportions as they may agree or, in default of agreement, in the proportions which the woman's earnings from each employment bear to the amount of the aggregated earnings.
Payments to be treated as contractual remuneration19
For the purposes of paragraph 12(1) and (2) of Schedule 4 to the 1986 Act, the payments which are to be treated as contractual remuneration are sums payable under the contract of service—
a
by way of remuneration;
b
for incapacity for work due to sickness or injury, and
c
by reason of pregnancy or confinement.
Meaning of “earnings”20
F111
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F442
For the purposes of section 171(4) of the Contributions and Benefits Act, the expression “earnings” refers to gross earnings and includes any remuneration or profit derived from a woman’s employment except any payment or amount which is—
a
excluded from the computation of a person’s earnings under regulation 19 or 19B of the Social Security (Contributions) Regulations 1979 (payments to be disregarded and payments to directors to be disregarded respectively);
b
a chargeable emolument under section 10A of the Social Security Contributions and Benefits Act 1992, except where, in consequence of such a chargeable emolument being excluded from earnings, a woman would not be entitled to statutory maternity pay.
F123
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
For the purposes of section 50(3) of the 1986 Act the expression “earnings” includes also—
a
any sum payable in respect of arrears of pay in pursuance of an order for reinstatement or re-engagement under the 1978 Act;
b
any sum payable by way of pay in pursuance of an order under the 1978 Act for the continuation of a contract of employment;
c
any sum payable by way of remuneration in pursuance of a protective award under the Employment Protection Act 1975;
d
any sum payable by way of statutory sick pay, including sums payable in accordance with regulations made under section 1(5) of the Social Security and Housing Benefits Act 19824.
F135
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F136
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Normal weekly earnings21
1
For the purposes of F23Part XII of the Contributions and Benefits Act, a woman's normal weekly earnings shall be calculated in accordance with the following provisions of this regulation.
2
In this regulation—
“the appropriate date” means the first day of the 14th week before the expected week of confinement, or the first day in the week in which the woman is confined, whichever is the earlier,F24... ;
“normal pay day” means a day on which the terms of a woman's contract of service require her to be paid, or the practice in her employment is for her to be paid, if any payment is due to her; and
“day of payment” means a day on which the woman was paid.
3
Subject to paragraph (4), the relevant period for the purposes of F25section 171(4) of the Contributions and Benefits Act is the period between—
a
the last normal pay day to fall before the appropriate date; and
b
the last normal pay day to fall at least 8 weeks earlier than the normal pay day mentioned in sub-paragraph (a),
including the normal pay day mentioned in sub-paragraph (a) but excluding that first mentioned in sub-paragraph (b).
4
In a case where a woman has no identifiable normal pay day, paragraph (3) shall have effect as if the words “day of payment”
were substituted for the words “normal pay day”
in each place where they occur.
5
In a case where a woman has normal pay days at intervals of or approximating to one or more calendar months (including intervals of or approximating to a year) her normal weekly earnings shall be calculated by dividing her earnings in the relevant period by the number of calendar months in that period (or, if it is not a whole number, the nearest whole number), multiplying the result by 12 and dividing by 52.
6
In a case to which paragraph (5) does not apply and the relevant period is not an exact number of weeks, the woman's normal weekly earnings shall be calculated by dividing her earnings in the relevant period by the number of days in the relevant period and multiplying the result by 7.
F437
In any case where a woman receives a back-dated pay increase which includes a sum in respect of a relevant period, normal weekly earnings shall be calculated as if such a sum was paid in that relevant period even though received after that period.
F1Effect of statutory maternity pay on F28incapacity benefit21A
F71
For the purpose of determining a woman’s entitlement to F29short-term incapacity benefit at the higher rate or long-term incapacity benefit under F30section 30A of the Contributions and Benefits Act, a day which falls within the maternity pay period shall, notwithstanding paragraph 11 of Schedule 4 to the 1986 Act, be treated as a day of incapacity for work for the purpose of determining whether it forms part of a F31period of incapacity for work where—
a
on that day she was incapable of work F32...; and
b
that day is not treated under F33section 30C(3) of the Contributions and Benefits Act as a day which is not a day of incapacity for work, and
c
the day immediately preceding the first day in the maternity pay period falls within either a F34period of incapacity for work of employment or a period of entitlement to statutory sick pay for the purposes of Part I of the Social Security and Housing Benefits Act 1982; and
d
the woman either satisfied the contribution conditions specified for F35short-term incapacity benefit on the first day of incapacity for work to fall within that F36period of incapacity for work or would have satisfied those conditions had a claim for F35short-term incapacity benefit been made on the first or any subsequent day of incapacity for work falling within that period of entitlement.
F71A
Any day which, by virtue of paragraph (1), forms part of a period of F37incapacity for work shall be further treated, for the purposes of determining F38entitlement to short-term incapacity benefit at the higher rate and long-term incapacity benefit under section 30A of the Contributions and Benefits Act, as being a day on which the woman has been entitled to short-term incapacity benefit.
F71B
For the purposes of this regulation, F39"period of incapacity for work” has the same meaning as in section 30C(1) of the Contributions and Benefits Act.
F71C
The reference to a maternity pay period in paragraph (1) is to a maternity pay period which commenced on or after 6th May 1990.
F402
Where by virtue of paragraph (1) a woman is entitled to short-term incapacity benefit at the higher rate or long-term incapacity benefit for any week (including part of a week) the total amount of such benefit (including any increase for a dependant) payable to her for that week shall be reduced by an amount equivalent to any statutory maternity pay to which she is entitled in accordance with Part XII of the Contributions and Benefits Act for the same week and only the balance, if any, of the short-term incapacity benefit at the higher rate or long-term incapacity benefit shall be payable to her.
F42Effect of maternity allowance on statutory maternity pay21B
Where a woman, in any week which falls within the maternity pay period, is—
a
in receipt of maternity allowance pursuant to the provisions of section 35(1A) of the Contributions and Benefits Act; and
b
entitled to receive statutory maternity pay in consequence of receiving a back-dated pay increase which includes a sum in respect of the relevant period;
the employer shall only be liable to make payments of statutory maternity pay in respect of such week of an amount equal to the amount (if any) by which the rate of statutory maternity pay exceeds the rate of maternity allowance received by her in that week.
PART VADMINISTRATION
Evidence of expected week of confinement or of confinement22
1
A woman shall in accordance with the following provisions of this regulation, provide the person who is liable to pay her statutory maternity pay with evidence as to—
a
the week in which the expected date of confinement occurs, and
b
where her entitlement to statutory maternity pay depends upon the fact of her confinement, the week in which she was confined.
2
For the purpose of paragraph (1)(b) a certificate of birth shall be sufficient evidence that the woman was confined in the week in which the birth occurred.
3
The evidence shall be submitted to the person who will be liable to make payments of statutory maternity pay not later than the end of the third week of the maternity pay period so however that where the woman has good cause the evidence may be submitted later than that date but not later than the end of the 13th week of the maternity pay period.
4
For the purposes of paragraph (3) evidence contained in an envelope which is properly addressed and sent by prepaid post shall be deemed to have been submitted on the day on which it was posted.
Notice of absence from work23
1
Where a woman is confined before the beginning of the 14th week before the expected week of confinement, she shall be entitled to payments of statutory maternity pay only if—
a
she gives notice to the person who will be liable to pay it that her absence from work with him is wholly because of her confinement, and
b
that notice is given within 21 days of the date she was confined or if in the particular circumstances that is not practicable, as soon as is reasonably practicable thereafter; and
c
where the person so requests, the notice is in writing.
2
Where a woman is confined before the date stated in a notice provided in accordance with F26section 164(4) of the Contributions and Benefits Act as being the date her absence from work is due to begin, she shall be entitled to payments of statutory maternity pay only if—
a
she gives a further notice to the person who will be liable to pay it specifying the date she was confined and the date her absence from work wholly or partly because of pregnancy or confinement began, and
b
that further notice is given within 21 days of the date she was confined or if in the particular circumstances that is not practicable, as soon as is reasonably practicable thereafter; and
c
where the person so requests, the notice is in writing.
3
For the purposes of this regulation, a notice contained in an envelope which is properly addressed and sent by prepaid post shall be deemed to be given on the date on which it is posted.
F274
Subject to paragraph (5), section 164(4) of the Contributions and Benefits Act shall not apply to a woman who leaves her employment with the person who will be liable to pay her statutory maternity pay after the beginning of the 15th week before the expected week of confinement for a reason wholly unconnected with her pregnancy.
F275
A woman who is exempted from section 164(4) of the Contributions and Benefits Act by paragraph (4) but who is confined before the 11th week before the expected week of confinement shall only be entitled to statutory maternity pay if she gives the person who will be liable to pay it notice specifying the date she was confined.
Notification of employment after confinement24
A woman who after the date of confinement but within the maternity pay period commences work in employed earner's employment with a person who is not liable to make payments of statutory maternity pay to her and is not a non-liable employer for the purposes of regulation 8(1), shall within 7 days of the day she commenced work inform any person who is so liable of the date she commenced work.
Provision of information in connection with determination of questions25
Any woman claiming to be entitled to statutory maternity pay, or any other person who is a party to proceedings arising under the 1986 Act relating to statutory maternity pay, shall, if she receives notification from the Secretary of State that any information is required from her for the determination of any question arising in connection therewith, furnish that information to the Secretary of State within 10 days of receiving that notification.
F4Provision of information relating to claims for certain other benefits25A
1
Where an employer who has been given notice in accordance with Section 46(4) of the 1986 Act or regulation 23 by a woman who is or has been an employee —
a
decides that he has no liability to make payments of statutory maternity pay to her, or
b
has made one or more payments of statutory maternity pay to her but decides, before the end of the maternity pay period and for a reason specified in paragraph (3), that he has no liability to make further payments to her,
then, in connection with the making of a claim by the woman for a maternity allowance or incapacity benefit, he shall furnish her with the information specified in the following provisions of this regulation.
2
Where the employer decides he has no liability to make payments of statutory maternity pay to the woman, he shall furnish her with details of the decision and the reasons for it.
3
Where the employer decides he has no liability to make further payments of statutory maternity pay to the woman because either she has within the maternity pay period been detained in legal custody or sentenced to a term of imprisonment which was not suspended, or for part of a week within the maternity pay period she was not present in a member State, he shall furnish her with —
a
details of his decision and the reasons for it; and
b
details of the last week in respect of which a liability to pay statutory maternity pay arose and the total number of weeks within the maternity pay period in which such a liability arose.
4
The employer shall—
a
return to the woman any maternity certificate provided by her in support of the notice referred to in paragraph (1); and
b
comply with any requirements imposed by the preceding provisions of this regulation—
i
in a case to which paragraph (2) applies, within 7 days of the decision being made, or, if earlier, within 21 days of the day the woman gave notice of her intended absence or of her confinement if that had occurred; or
ii
in a case to which paragraph (3) refers, within 7 days of being notified of the woman’s detention or sentence or, as the case may be, absence from a member State.
5
In this regulation, incapacity benefit' means F41incapacity benefit or a severe disablement allowance.
Records to be maintained by employers26
1
Every employer shall maintain for 3 years after the end of the tax year in which the maternity pay period ends a record in relation to any woman who is or was an employee of his of—
a
the date of the first day of absence from work wholly or partly because of pregnancy or confinement as notified by her and, if different, the date of the first day when such absence commenced;
b
the weeks in that tax year in which statutory maternity pay was paid and the amount paid in each week; and
c
any week in that tax year which was within her maternity pay period but for which no payment of statutory maternity pay was made to her and the reasons no payment was made.
2
Except where he was not liable to make a payment of statutory maternity pay and subject to paragraphs (3) and (4), every employer shall retain for 3 years after the end of the tax year in which the maternity pay period ends any medical certificate or other evidence relating to the expected week of confinement, or as the case may be, the confinement which was provided to him by a woman who is or was an employee of his.
3
Where an employer returns a medical certificate to an employee of his for the purpose of enabling her to make a claim for benefit under the 1975 Act, it shall be sufficient for the purposes of paragraph (2) if he retains a copy of that certificate.
4
An employer shall not retain any certificate of birth provided to him as evidence of confinement by a woman who is or was an employee of his, but shall retain a record of the date of birth.
PART VIPAYMENT
Payment of statutory maternity pay27
Payment of statutory maternity pay may be made in a like manner to payments of remuneration but shall not include payments in kind or by way of the provision of board or lodgings or of services or other facilities.
Rounding to avoid fractional amounts28
Where any payment of statutory maternity pay is made for any week at the higher rate specified in section 48(2) of the 1986 Act and the amount due for that week includes a fraction of a penny, the payment shall be rounded to the next whole number of pence.
Time when statutory maternity pay is to be paid29
1
In this regulation, “pay day” means a day on which it has been agreed, or it is the normal practice between an employer or former employer and a woman who is or was an employee of his, that payments by way of remuneration are to be made, or, where there is no such agreement or normal practice, the last day of a calendar month.
2
In any case where—
a
a decision has been made by an adjudication officer, appeal tribunal or Commissioner in proceedings under Part III of the 1975 Act as a result of which a woman is entitled to an amount of statutory maternity pay; and
b
the time for bringing an appeal against the decision has expired and either—
i
no such appeal has been brought; or
ii
such an appeal has been brought and has been finally disposed of,
that amount of statutory maternity pay shall be paid within the time specified in paragraph (3).
3
Subject to paragraphs (4) and (5), the employer or former employer shall pay the amount not later than the first pay day after—
a
where an appeal has been brought, the day on which the employer or former employer receives notification that it has been finally disposed of;
b
where leave to appeal has been refused and there remains no further opportunity to apply for leave, the day on which the employer or former employer receives notification of the refusal; and
c
in any other case, the day on which the time for bringing an appeal expires.
4
Subject to paragraph (5), where it is impracticable, in view of the employer's or former employer's methods of accounting for and paying remuneration, for the requirement of payment referred to in paragraph (3) to be met by the pay day referred to in that paragraph, it shall be met not later than the next following pay day.
5
Where the employer or former employer would not have remunerated the woman for her work in the week in question as early as the pay day specified in paragraph (3) or (if it applies) paragraph (4), the requirement of payment shall be met on the first day on which the woman would have been remunerated for her work in that week.
Payments by the Secretary of State30
Where the Secretary of State becomes liable in accordance with regulation 7 to make payments of statutory maternity pay to a woman, the first payment shall be made as soon as reasonably practicable after he becomes so liable, and payments thereafter shall be made at weekly intervals, by means of an instrument of payment or by such other means as appears to the Secretary of State to be appropriate in the circumstances of any particular case.
Persons unable to act31
1
Where in the case of any woman—
a
statutory maternity pay is payable to her or she is alleged to be entitled to it;
b
she is unable for the time being to act; and
c
either—
i
no receiver has been appointed by the Court of Protection with power to receive statutory maternity pay on her behalf, or
ii
in Scotland, her estate is not being administrated by any tutor, curator or other guardian acting or appointed in terms of law,
the Secretary of State may, upon written application to him by a person who, if a natural person, is over the age of 18, appoint that person to exercise, on behalf of the woman any right to which she may be entitled under Part V of the 1986 Act and to deal on her behalf with any sums payable to her.
2
Where the Secretary of State has made an appointment under paragraph (1)—
a
he may at any time in his absolute discretion revoke it;
b
the person appointed may resign his office after having given one month's notice in writing to the Secretary of State of his intention to do so; and
c
the appointment shall terminate when the Secretary of State is notified that a receiver or other person to whom paragraph (1)(c) applies has been appointed.
3
Anything required by Part V of the 1986 Act to be done by or to any woman who is unable to act may be done by or to the person appointed under this regulation to act on her behalf, and the receipt of the person so appointed shall be a good discharge to the woman's employer or former employer for any sum paid.
PART VIIOFFENCES
Penalties32
Any person who without reasonable excuse contravenes, or fails to comply with any provision of regulations F925F825A, 26 or 29, shall be guilty of an offence under the 1986 Act and shall be liable on summary conviction to a penalty not exceeding—
a
for any one offence, level 3 on the standard scale, or
b
except in relation to regulation 29, for an offence of continuing any such contravention or failure after conviction, £40 for each day on which it is so continued.
Signed by authority of the Secretary of State for Social Services.
Instrument cert. functs. trans. (1.4.1999) by Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c. 2), s. 1(2), Sch. 2