Q&As

If an employee who was previously able to work becomes unable to work due to a change in her immigration status, can the employer stop her statutory maternity pay?

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Published on LexisPSL on 29/03/2017

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • If an employee who was previously able to work becomes unable to work due to a change in her immigration status, can the employer stop her statutory maternity pay?

If an employee who was previously able to work becomes unable to work due to a change in her immigration status, can the employer stop her statutory maternity pay?

In order to qualify for statutory maternity pay (SMP), it is necessary for a woman to be or have been an employee as defined and to satisfy the following conditions:

  1. she must have been in employment for a continuous period of at least 26 weeks ending with the week immediately preceding the 14th week before the expected week of confinement (ie childbirth)

  2. her average weekly earnings in the last eight weeks of the 26-week period must be not less than the lower earnings limit in force at the end of that week (ie enough for her to have to pay Class 1 national insurance contributions). The lower earnings limit is £112 per week with effect from 6 April 2015

  3. she must have become pregnant and have reached, or given birth before reaching, the commencement of the 11th week before the expected week of confinement

  4. she must have given the requisite notice to her employer of when she expects his liability to pay her SMP to start

  5. she must be off work

The definition of 'employee' for SMP purposes mirrors the definition of 'employed earner', ie a person who is gainfully employed in Great Britain:

  1. under a contract

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