Once an employee qualifies for SMP, what happens to her entitlement if she ceases to work for the employer either before or during her period of maternity leave?
To recap, an employee qualifies for statutory maternity pay (“SMP”) if she has:
- been employed by her employer for a continuous period of at least 26 weeks ending with the week immediately preceding the 14th week before the expected week of childbirth (“EWC”);
- become pregnant and has reached, or given birth before reaching, the commencement of the 11th week before the EWC;
- given the requisite notice to her employer as to when she expects statutory maternity pay to commence; and
- average weekly earnings of not less than £116 with that employer in the eight weeks preceding the 14th week before the EWC.
An employer must pay SMP if the above criteria are satisfied. Therefore, the woman does not actually need to be employed by the employer who is paying her SMP at the time she begins to receive that pay (or at a time after). In short, the employer will be fixed with the liability to pay SMP once the woman’s right to SMP has been established.
However, if during the period of SMP entitlement the woman begins to work for a new employer, the obligation on the part of the former employer to pay SMP will cease.
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