We’ve just bought the business and assets of a company, and its employees have transferred to us under the Transfer of Undertakings (Protection of Employment) Regulations 2006. We’ve only been responsible for these new employees for a short period of time, and now one of them has given notice of maternity leave. Can she take maternity leave already and do we have to pay?

All employees have a statutory right to take maternity leave. They enjoy this right regardless of their pay, hours or how long they’ve worked for their employer. You should make sure that you’ve been given proper notice. You should receive notice of the baby’s due date and when the employee wishes to begin maternity leave, at least 15 weeks before the expected due date.

Unlike statutory maternity leave, statutory maternity pay is dependent on the time spent in employment. Employees are required to work for their employer for at least 26 weeks before their qualifying week to be eligible for statutory maternity pay. The qualifying week is the 15th week before the expected due date. Effectively, when an employee hands in their maternity notice and begins the countdown to maternity leave, they must have spent at least half a year with their employer.

An eligible employee will be entitled to up to 39 weeks statutory maternity pay. They will receive 90% of their average weekly earnings before tax for the first six weeks. After that, they will receive whichever is the lowest of either £139.58 or 90% of their average weekly earnings. Statutory maternity pay usually starts when maternity leave begins, but may begin automatically if the woman in question is off work with a pregnancy related illness within 4 weeks of their due date.

If the relevant transfer under TUPE has only recently occurred, the woman in question will not have been in your employment for 26 weeks before her qualifying period. You may think the transfer from the previous employer to your business is a new beginning for the transferring employees, with the transfer resetting their length of service. However, the TUPE Regulations explicitly state that a relevant transfer will not affect the continuous employment of an employee. This means that a woman who had worked for 25 weeks for the transferor, and only 1 week for her new employer before her qualifying date, would be eligible for statutory maternity pay. This shows the importance of checking and requesting thorough employee liability information from the transferor during the purchase process.

Remember, dismissals due to a TUPE transfer will be automatically unfair. If you have any issues surrounding TUPE you should seek expert professional advice before your problems multiply.