A Guide to Statutory Maternity Pay (SMP) in 2023
What is Statutory Maternity Pay (SMP)?
Statutory Maternity Pay (SMP) is the amount someone might receive whilst taking maternity leave. In general, minimal SMP rates are determined by the UK government and paid by the employer for up to 39 weeks.
Employees will need to qualify for SMP, giving their employers notice at least 15 weeks before the baby is due. As a result, employers must also ensure the correct provisions, including minimum payments, are put in place before an employee starts claiming SMP.
Eligibility Criteria for Statutory Maternity Pay
Any expectant employees should fit into the eligibility criteria for SMP. If there are any discrepancies, it might mean employees are unable to claim SMP, but they could be eligible for Maternity Allowance (MA) instead.
Pregnant employees looking to claim SMP will need to meet the following criteria:
- Earn at least £123 each week.
- Give the correct notice and proof of pregnancy to an employer.
- Have worked and held employment continuously for at least 26 weeks with their employer, continuing into the qualifying week.
An employee’s qualifying week is calculated as the 15th week before the baby’s expected due date. It’s worth noting that certain criteria, such as continuous employment, for Statutory Maternity Pay do not affect an employee’s ability to take maternity leave. For example, maternity leave simply requires correct notice, proof of pregnancy and employment status to be confirmed and verified.
There are some circumstances where employees will still be eligible for Statutory Maternity Pay and leave, especially where tragic situations occur. An employee who gives birth to a very premature baby is still able to claim SMP even though it is before the agreed maternity leave start date. Likewise, employees who sadly experience a stillborn after their 24th week of pregnancy, or in the instance a baby passes away after birth, are still entitled to receive SMP.
Who is Entitled to Statutory Maternity Pay?
1. Full-time employees
Full-time employees that meet the criteria will be able to claim SMP from their first day of maternity leave. SMP is available for 39 weeks from the date it is started. After this point, an employer doesn’t have to continue payment.
2. Part-time employees
Part-time employees are also entitled to SMP when they take maternity leave. In this case, employees don’t need to evidence the number of hours they work, to receive SMP. For holiday entitlement and statutory sick pay, part-time employees need to keep a record of part-time hours worked to accurately calculate their allowance. This isn’t the case for SMP. Instead, they will need to meet the same criteria as full-time employees.
3. Contractors
Similar to full-time and part-time employees, contractors working for limited companies on a continual basis could be entitled to SMP. They’ll also need to fit in with the allocated criteria set aside by the UK government.
4. Self-employed (limited company)
Individuals who are classed as sole traders, such as tradespeople, freelance workers and independent contractors will not be able to claim SMP as they work for themselves. However, for those with a limited company, SMP is possible. It could even be plausible for the company to pay for an individual’s SMP and then reclaim up to 92% of it through HMRC.
5. Qualified employees that leave their job
This category is two-fold. Qualified employees that leave a job won’t be entitled to maternity leave but they could still be paid SMP from the employer they’ve recently left as long as they satisfy qualifying conditions. Employees that leave their job could start receiving SMP around the 11th week prior to their medical due date. It’s also possible for SMP to start the day after the baby is born.
Employees that work for a company that has been bought out or entered the TUPE process will also be entitled to SMP. In this instance, the duration with the employer is considered continual, despite new contracts being drawn up for business.
Who is Not Entitled to Statutory Maternity Pay?
1. Self-employed (sole trader)
For workers classed as self-employed, they may or may not be able to receive SMP. Essentially, if someone is considered a sole trader without a limited company, they aren’t eligible for SMP but could receive Maternity Allowance (MA) instead, which is paid by the government.
2. Parents to a surrogate baby
Where children are born through surrogacy, parents are not able to claim SMP. Instead, employees might be eligible for Statutory Adoption Leave and Pay. For employees to claim this, they will need to meet the following criteria:
- Be an employee.
- Give correct notice.
- Offer proof of surrogacy, but only if the employer asks.
3. Those seeking adoption
Employees adopting newborn babies or children will also not be able to claim SMP. Instead, they will follow the same process as parents to surrogate babies, only providing proof of the adoption if the employer asks for it.
4. Those in police custody during SMP periods
Pregnant individuals already receiving their maternity pay will lose further SMP payments if they are taken into police custody during this time. Upon discharge, SMP will not restart. It’s not possible for employers to bypass this rule for pregnant employees, so form SMP1 will need to be submitted within seven days of the decision being made.
It is a pregnant employee’s responsibility to declare to their employer if they have been detained in legal custody. For these employees, an SMP1 form should be delivered within 28 days of their notice or the date they gave birth.
In this circumstance, legal custody does not include:
- Voluntarily assisting policy with any inquiries
- Employees out on bail
- Those serving a suspended sentence.
How Much is Statutory Maternity Pay?
SMP is separated into two payment periods for employees. Within the first six weeks, employees will receive up to 90%* of their average weekly earnings before tax is applied. After this, the remaining 33 weeks are either paid at £172.48* or 90% of an employee’s average weekly earnings. The lower figure is selected and applied by employers. For employees taking Statutory Shared Paternal Pay (ShPP) it will be paid using the same metrics (£172.48 or 90%) for the full amount of time.
Employers can reclaim up to 92% of an employee’s Statutory Maternity Pay, including Paternity and Adoption leave too.
*These are the figures as of April 2023.
How is Statutory Maternity Pay Calculated?
Despite being calculated based on weekly earnings, employees will still be paid in the same way as their regular salary. Therefore, if payday normally sits on the last day of the month, that’s also when employees claiming SMP should expect to receive any payments. Similarly, if pay day is every two weeks, that’s also when SMP will be paid.
| Average Monthly Earning (Before Tax) | Average Weekly Earning (Before Tax) | 90% Calculation (Before Tax) |
| £2,552 | £638 | £574.20 |
SMP is calculated using an employee’s average earnings over a period of around eight weeks and includes the last payday before the qualifying week. By this point, employers will understand what the first six weeks of pay looks like for the pregnant employee and how the final 33 weeks will also be paid.
Within the first six weeks example
This example considers that the employee has started SMP straight after their final payday before entering maternity leave. As such, this employer should be calculating weekly payments at £574.20 but maintaining the same pay date. These figures are also based on the average salary within the UK.
33 weeks example
| Average Monthly Earning (Before Tax) | Average Weekly Earning (Before Tax) | 90% Calculation (Before Tax) | Lower SMP rate (Before Tax) |
| £2,552 | £638 | £574.20 | £172.48 |
Using the same example data as above, after the first six weeks, an employee on SMP will then move to either 90% of their weekly earning or £172.48 each week. During this time, the lowest figure is applied for SMP. Therefore, this employee will now receive £172.48 per week from their employer.
When Does Statutory Maternity Pay Start?
An employee heading on maternity leave will agree on a start date with their employer. This is normally determined in advance so a pregnant employee can take maternity leave any day from 11 weeks prior to the baby’s due date. However, some employees prefer to work right up to their due dates. If this is the case, SMP will start on the first day they take maternity leave.
There are some exceptions for when SMP can start. Employees who experience a pregnancy-related illness four weeks before their baby is due could start receiving SMP earlier. Likewise, employees who are unaware of their pregnancy, also known as cryptic pregnancy, can claim either SMP or MA soon after their baby is born. This is a rare occurrence though, so certain criteria, like correct notice, can’t be given.
Statutory Maternity Pay FAQs
What’s the difference between SMP and maternity leave?
Statutory Maternity Pay is the amount an employee on maternity leave is paid during their time away from work. Maternity leave itself is the act of taking time away to care for a newborn or recover from childbirth. Whilst SMP can start from the first-day maternity leave is taken, it only lasts for 39 weeks. On the other hand, employees are entitled to up to 52 weeks of maternity leave.
Can maternity leave last more than a year?
Maternity can last up to 52 weeks unless an employee requests a return to work beforehand. In some cases, an employee might remain absent from work after maternity leave which could relate to other parental or personal leave requirements. Any decisions made on this need to be communicated between an employee and an employer.
Some employees might also become pregnant whilst they’re on maternity leave. If this is the case, an employee will need to ensure they fit the SMP criteria, giving their employer plenty of notice again. It’s also worth noting that it is illegal for an employer to terminate an employment contract because an employee becomes pregnant or falls pregnant whilst on maternity leave.
How long can maternity leave be taken for?
Maternity leave can be taken for up to 52 weeks by an employee. However, an employee can choose to come back to work before their maternity leave and SMP has finished. In this instance, the employee’s pay will be calculated at 100%, or to a wage agreed by the employer and employee.
Do employers have to pay Statutory Maternity Pay?
Yes, if a qualifying employee requests it, an employer must pay Statutory Maternity Pay and follow the guidance provided by the government.
Can someone on maternity leave be furloughed?
Furlough payments can only start for employees on maternity leave once their leave ends and their SMP payments stop.
Are employees on maternity leave protected from dismissal?
In most circumstances, yes. An employer can’t discriminate against an employee because they are either pregnant or on maternity leave. In the case that a pregnant person is dismissed, an employer must offer the reasoning for doing so. Employees who feel they have been discriminated against are entitled to take the case to a tribunal.
However, if an employee is dismissed just before the relevant period, employers must pay the affected employee SMP if their case was determined unfair by a tribunal. Likewise, SMP must be paid if someone is reinstated as a result of a statutory grievance procedure.
What is a Maternity Allowance?
Maternity Allowance is a type of payment offered for individuals taking time off to have a baby. It can be offered for individuals who:
- Are employed but don’t qualify for SMP.
- Are self-employed.
- Have stopped working recently.
- Complete unpaid work within a spouse or civil partner’s business.
Need support with calculating Statutory Maternity Pay?
At Staffology, we support employers with calculating statutory pay requirements, such as maternity and adoption, through our automated payroll software. Request a demo today and see how we can help you.
