School teachers Q&A September 2019

Q1: What is the current occupational maternity entitlement?

A1: The current occupational maternity entitlement for teachers is as set out in the Burgundy Book. For a variety of reasons, this has not been updated since 2000 and therefore authorities will need to take account of statutory changes to maternity entitlements since then. The current occupational and statutory maternity entitlements are set out below.

These are:

A2: Teachers with one year's continuous service with one or more local authorities at the 11th week before the EWC will receive 18 weeks’ Occupational Maternity Pay (OMP), as follows:

  • four weeks at full pay (SMP offset)
  • two weeks at 9/10ths of a week's pay (SMP offset)
  • 12 weeks at half pay (+ SMP).

A3: This will be followed by 21 weeks’ Statutory Maternity Pay (SMP) (where eligible). The remaining 13 weeks’ leave are unpaid.

A4: The 12 weeks of half occupational maternity pay is only payable on condition that the teacher returns to work for at least 13 weeks.  (See section 5 of the Burgundy Book) 

Q2: If a teacher is not eligible for SMP - would she be eligible for Maternity Allowance from the DWP?

A1: If a teacher is not eligible for SMP they may be eligible for Maternity Allowance, payable for 39 weeks. Eligibility for Maternity Allowance is assessed by the DWP.

Q3: When does SMP start?

A1: The earliest date that maternity leave and, consequently, SMP can start is from the 11th week before the week the baby is due (unless the baby is born before this); the latest date is the day following the birth. If a teacher continues to work after the 11th week before the week her baby is due, she can choose when she wants her SMP and maternity leave to start. However, maternity leave will automatically be triggered by any pregnancy-related absence from the 4th week before the baby is due. Leave and pay will both start on the day following the first day of absence.

Q4: Can a teacher commence her maternity leave at any time; including during a period of school closure?

A1: Yes, it is for the teacher to determine when she wants to commence maternity leave, to suit her own wishes, subject to both the 11th week provision and the automatic trigger in the case of the birth of the child and pregnancy-related sickness absence. 

Q5: If a teacher falls pregnant again during a period of no pay i.e. maternity leave; what will her entitlement be for the subsequent maternity period?

A1: Provided the teacher has sufficient service, she would be entitled to OMP as she will still be considered an employee during her absence and there is no earnings qualification for OMP. She may not be entitled to SMP as she may not have received enough pay during the relevant period to qualify for this (the normal calculation for SMP would apply). If she is entitled to Maternity Allowance, this could be offset against OMP during the first 6 weeks.

Q6: Do teachers need to give 8 weeks, 28 days or 21 days’ notice of return to work following maternity?

A1: If the teacher intends to return at the end of their Additional Maternity Leave period, no notice is required. Under the Work and Families Act 2006 the statutory notice period for early return from leave was extended from 28 days to 8 weeks. However, under the Burgundy Book a teacher only has to give 21 days' notice (see paragraph 7.1 of Section 5). This contractual entitlement over-rides the statutory requirement to give 8 weeks' notice.

Q7: Does service with another school in a different local authority count as continuous service for maternity purposes?  

A1: Previous continuous service as a teacher with a different local education authority will count for the purposes of Occupational Maternity Pay (Section 4.2 of the Burgundy Book). However, to qualify for SMP, a teacher must have 26 weeks' continuous service with their current employer by the 15th week before the expected week of childbirth. Current employer will include a local authority or any of its maintained schools. It does not include a different local authority or a maintained school within a different local authority.

Q8: If a teacher decides not to return to her job, does she need to repay her entitlement to occupational maternity pay? 

A1: Yes, if a teacher does not return to her original job for 13 weeks after maternity leave, she will be required to repay the 12 weeks of half occupational maternity pay. If she knows that she intends to leave she can elect not to receive this payment. It is also at the authority's discretion for community and voluntary controlled schools; the governance board in a foundation or VA school, whether they reclaim some or all of these payments.

Q9: On return from maternity leave, what constitutes the same job for a teacher in order to retain her 12 weeks' half occupational maternity pay?

A1: A teacher must return to work as a teacher within the maintained school she worked at prior to the maternity leave and is entitled to return on the same terms and conditions. 

A2: A teacher has the right to return to her job in the school on the same terms and conditions. This is a right to return to a full time contract if the teacher was originally employed on a full time contract.

A3: If a teacher returns to work as a teacher in a different school, even if this is the same employer, e.g. a community school within the same local authority, the teacher should refund such sum after the first six weeks’ payment as the employer at their discretion may decide. Payments made by way of SMP are not refundable.

Q10: What must an employer consider when assessing a request to work part time/flexible work pattern following maternity leave?

A1: Key points

  • Written requests and appeals must be considered and decided upon within three months of the receipt of the request.
  • Employers must have a sound business reason for rejecting any request.

More detailed guidance for employers on handling a request to work flexibly can be found on the ACAS website.

A2: A teacher returning on reduced hours, must work the equivalent of 13 weeks at their previous hours to be eligible to retain the 12 weeks half OMP, i.e. a full-time teacher who returns on a 50 per cent contract must return for 26 weeks.

Q11: What should a teacher be paid for Keeping in Touch (KIT) days?

  1. A woman can do up to 10 days' work during her maternity leave without bringing her maternity leave to an end or losing maternity pay. As far as we are aware authorities are adopting different practices with regard to payment for KIT days. One option, is to offset the pay due against the SMP for the day. 
  2. Issues to take into account when determining pay include the nature of work and duration. We advise that any policy is clear and understood by employees before they do any work and that the employer gives consideration to the impact on lower paid staff (with regards to e.g. the cost of arranging childcare and/or travel to work whilst on reduced (or no pay) if the authority wishes to take advantage of the possible improvements in communication and retention that the KIT initiative may bring. Note that an employee cannot carry out any work during the first two weeks following the birth of the child (the compulsory maternity leave period).

Q12: Are supply teachers entitled to occupational maternity pay?

A1: Supply teachers, engaged via an external recruitment agency, are not entitled to OMP as they are not employees. For others deemed ‘supply teachers’ the Burgundy Book provides helpful information in ‘Section 2: Definitions’ which states:   

1.1 “Teachers” means all teachers (including head teachers) who work in schools or in centrally managed LA services and who are remunerated either on a full-time basis or a part-time basis, other than: 

(a) those employed on a day to day or other short notice basis (i.e. teachers paid at a daily or hourly rate) under the terms of the School Teachers’ Pay and Conditions Document; 

(b) those employed on a temporary basis either for a period of one term or less or as substitutes for permanently appointed teachers absent for reasons such as secondment, prolonged illness or maternity; 

1.2 Those teachers falling within category (a) of paragraph 1.1 above shall be covered by paragraphs 5 and 6 of Section 3, paragraphs 1,2 and 4 of Section 6, Section 7 and paragraphs 1 and 2 of Section 8.

1.3 Those teachers falling within category (b) of paragraph 1.1 above shall be covered by all sections of the document, except paragraph 4 of section 3 - unless there is no other stated notice provision within their contract.”

A2: The Maternity Scheme for Teachers is at section 5 of the Burgundy Book and therefore, teachers falling within category (a) of paragraph 1.1 are not covered. 

A3: However, those engaged as described in paragraph (b) may be entitled to OMP, as long as they meet the qualifying criteria for service and/or requirement that they return to their job following maternity leave.

A4: All employed teachers that meet the qualifying criteria for maternity leave and pay as set out by legislation and in the Burgundy Book will be entitled to OMP. Casual or supply teachers would not normally meet the qualifying criteria for service and/or requirement that they return to their job following maternity leave, although care should be taken if a “casual” teacher has been engaged on an on-going basis for some time. (see Burgundy Book paragraphs 1.1 to 1.3 of Section 2).  

Q13: What notice is a teacher covering maternity leave entitled to if the permanent post holder returns early from maternity leave or before the end of term?

A1: If a school wishes to, they can provide a contract that expires on the post holder’s return from maternity leave. If a teacher returns from maternity leave early, the teacher covering her post will be entitled to the notice period specified in their contract. This may be the notice provisions contained within the Burgundy Book or a different notice period specifically provided for in that contract. Schools should take advice from their HR providers on suitable wording for such contracts.

Q14: Do teachers on maternity leave accrue a right to paid annual leave under the Working Time Regulations? 

A1: All teachers have a statutory right to 28 days’ leave under the Working Time Regulations. As a result of case law in Gomez, a teacher must be able to take her annual leave at a time separate to her maternity leave. Very often the 28 days entitlement will have been met during school closure periods either before or after her period of maternity leave. 

A2:The appropriate LGA contact for queries is

Q15: What impact does maternity leave have on pay progression?

A1: In most cases, maternity leave will overlap two ‘appraisal years’. There will therefore be a period of service during the first appraisal year before maternity leave starts. This period can be used to assess performance for that appraisal year, taking into account any issues which may have arisen due to the pregnancy. 

A2: The appraisal can be conducted before maternity leave commences to ensure that all issues are fresh in the minds of the parties involved and the pay review can be implemented, if appropriate, at the usual time. 

A3: Equally, on return from maternity leave, there would usually be sufficient time left in the appraisal year for an assessment to be carried out for that appraisal year. Targets, where appropriate, would need to be adjusted to take account of the shorter time frame involved.

A4: In some circumstances, the maternity leave may overlap an appraisal year to a significant extent meaning that there is a very limited period, if any to assess performance for that year. In such cases, it may be appropriate to base an assessment on the previous year’s review, using this as an indicator of the likely performance that would have occurred had the teacher not taken maternity leave. However, if that previous performance review had highlighted areas that needed improvement, with the result that the teacher would not receive a pay increase, it may be fairer to give the teacher a period of time on return from maternity leave to demonstrate that she has improved her performance since the last review before determining her entitlement to a pay rise. If a pay rise is awarded this would then be backdated.

A1: Assessing performance in the context of absence may create some difficulties for the appraisal process. All decisions on pay progression for all staff must be evidence based. Regardless of whether someone is on maternity leave during the appraisal period, appraisal and pay arrangements will continue to apply. There may however be less evidence available over the appraisal period for a judgement to be made against agreed standards and objectives. In such circumstances, schools will need to consider evidence available from the teacher’s time in school during the appraisal period and prior performance. 
A2: For example, if a teacher has been at work for 2 terms out of 3 in the appraisal cycle, it is likely that sufficient evidence will be available to form a judgement. If however the teacher has been on maternity leave for a longer period during the appraisal cycle, the school may need to rely on performance prior to the maternity period.
A3: If a school still applies through its pay policy the pre-2014 arrangements under which 2 years were spent on an Upper Pay Range pay point, similar principles would apply, if for some part of that period the employee was on maternity leave. Clearly, in most circumstances the employee is likely to have been at work for a significant part of the two year cycle (for example 3 to 4 terms out of 6) to enable an assessment to be made without the need for two specific appraisals to have taken place.

A4: Any decision to deny a teacher an appraisal review and/or subsequent pay progression purely because of their absence due to maternity leave will automatically be discriminatory and unlawful. 

Q16: Can a teacher on or recently returned from maternity leave apply to move to the Upper Pay Range?

A1: Yes. The school’s agreed procedure for pay range progression will apply and the teacher will be required to provide evidence in support of their application. 

Q17: What are the paternity provisions for teachers?

A1: Paternity leave is not referred to in the Burgundy Book. 
However, the teacher may be entitled to statutory paternity leave and pay, in which case they can choose to take one or two weeks' consecutive paid leave. Further information.  

Q18: What are the shared parental leave provisions for teachers?

A1: Shared parental leave is not referred to in the Burgundy Book. However, a teacher may be entitled to share the maternity or adoption leave and pay of their partner. Further information.