Maternity entitlements and self-employment – what’s the difference?

Discussing an upcoming photoshoot in Nice, reality star turned businesswoman Molly-Mae Hague recently confided in her YouTube audience that she had already returned to work following the birth of her daughter, Bambi, in January this year.

Presumably pre-empting some backlash, she caveated her decision to return to work after three months by explaining that she is self-employed and doesn’t benefit from maternity leave or pay. She has outgoings to cover, and to cover them she has to go back to work.

Despite the fact that the average working parent will be returning to slightly less glamourous conditions than a photoshoot in the south of France, many can relate to the crux of Molly-Mae’s sentiment and her obvious reluctance to leave her baby so soon after welcoming her into the world. But, what benefits is Molly-Mae missing out on, given her self-employed status?

Statutory Maternity Leave (SML)

In the UK, an employee can take up to 52 weeks of maternity leave. This is made up of 26 weeks of ordinary maternity leave (which includes two weeks of compulsory leave starting on the day of childbirth), and up to 26 weeks of additional maternity leave.

Eligibility arises by virtue of being an employee – there are no other qualifications to meet. However, workers, agency workers and self-employed people (like Molly-Mae) are not entitled to SML.

If an employee returns after only ordinary maternity leave, then they have a right to return to the same job. There is a slight variation to this entitlement if any period of additional maternity leave is taken – where it is not reasonably practicable for the employee to return to her old job, the employer must provide another job which is suitable and appropriate for the employee in the circumstances.

Further, there are also enhanced rights in relation to redundancy and alternative employment during the SML period. This is a complex area of law, with rights of an employee arising under discrimination legislation as well as in respect of automatic unfair dismissal.

Statutory Maternity Pay (SMP)

An employee may also be entitled to SMP, which is paid for up to 39 weeks. The entitlement is to 90% of an employee’s average weekly earnings for the first six weeks, and then the lower of either £172.48 (presently) or 90% of their average weekly earnings for the remaining 33 weeks.

Unlike SML, there are eligibility requirements for SMP which are:

1.  the employee has been continuously employed by their employer for a period of 26 weeks before the ‘qualifying week’ (which is the 15^th week before the expected week of childbirth); and
2.  their normal weekly earnings are at least £123 (presently) for the eight weeks before the qualifying week.

What if, like Molly-Mae, you are self-employed?

Whilst it is only employees (as defined in the legislation) that are entitled to SMP, for those who don’t fall within this category, they may still be eligible for Maternity Allowance.

To be eligible you must have been an employed or self-employed earner for at least 26 weeks (not necessarily continuously or with the same employer) in the 66 weeks before your expected week of childbirth, and your average weekly earnings in at least 13 of those weeks must not be less than £30 per week.

If you are employed or have recently stopped working, you are entitled to £172.48 a week or 90% of your average weekly earnings (whichever is less). If you are self-employed, you are entitled to between £30 and £172.48 per week. How much you are entitled to receive depends on your national insurance contributions in the 66 weeks before your expected week of childbirth.

We can assume that Molly-Mae would therefore be eligible for Maternity Allowance. However, like many parents (particularly high earners), Maternity Allowance or SMP (if she were entitled to it) may not be sufficient to cover her outgoings.

Employers can provide more favourable terms in respect of maternity and shared parental leave pay for their employees if they wish to do so. In that scenario, employees may also consider utilising shared parental leave and pay provisions to maximise the value of any leave (and pay) each is entitled to.

If you have any questions about maternity or other family-friendly policies, please get in touch with our specialist employment team. With new legislation to enhance redundancy entitlements during pregnancy and after SML currently going through the UK Parliament, this is an area set for change, and we’re happy to help your organisation take the necessary steps to remain compliant.