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What maternity and paternity rights might I have?

Maternity for agency workers

As an agency worker you may be able to get statutory maternity, paternity or parental pay, but you cannot get statutory maternity, paternity or parental leave. Under the Agency Workers Regulations, agency workers are entitled to the same basic conditions of employment as permanent employees after 12 weeks’ continuous weeks with the same employer. This means that if you are an agency worker and you have been placed with the same employer for at least 12 weeks, you have the right to paid time off for your antenatal care and the right to be offered suitable alternative work or to be suspended on full pay if there are health and safety risks.

If you have worked for the same client for 26 weeks continuously then you should be eligible for statutory maternity pay, statutory paternity pay or statutory shared parental pay.

You can have paid time off to go to ‘antenatal care’ if you cannot arrange it outside working hours. Antenatal care includes antenatal classes, appointments and parenting classes if they’ve been recommended by a doctor or midwife. You must also be paid for the travel time if it’s during
working hours.

It’s illegal to discriminate against you on the grounds that:

  • you’re pregnant
  • you’ve given birth in the last 6 months
  • you’re breastfeeding

It’s discrimination if your:

  • agency refuses to place you in a job
  • hirer refuses to hire you
  • job was terminated because you’re pregnant
  • agency refuses to keep you on its books
  • agency offers you only short jobs and gives longer ones to other agency workers
  • hirer will not let you come back after having leave due to maternity

Statutory Maternity Pay (SMP)

To qualify for SMP you must:

  • have been employed by the same agency in each of the 26 weeks ending with the qualifying week (the 15th  week before the week your baby is due), and
  • still work for the agency in all or part of your qualifying week, and
  • earn at least £120 per week on average in the eight weeks (if paid weekly) or two months (if paid monthly) up to the last payday before the end of the qualifying week.

SMP is paid for 39 weeks. SMP is paid at two rates: for the first six weeks you get 90% of your average pay. After that you get a flat rate of £151.20 per week for 33 weeks or 90% of your average earnings if that is less.

Your agency pays your SMP in the same way as your salary is paid. They deduct any tax and National Insurance contributions. Your agency can claim most or all of your SMP back from HM Revenue and Customs (HMRC).

Paternity for agency workers

As an agency worker you won’t qualify for paternity leave, however you might qualify for statutory paternity pay. The father or the mother’s partner (including same sex partners) can qualify for statutory paternity pay if s/he:

  • earns over £120 per week in the eight weeks or two months before the 15th week before the baby is due, and
  • has been employed by the same agency for at least 26 weeks by the 15th week before the baby is due and is still working for the agency at the birth date

Shared parental leave for agency workers

In order to qualify for statutory shared parental leave an individual must have a contract of employment, and in most cases an agency worker will not be an employee and therefore won’t qualify.

Maternity and paternity for umbrella employees

If you are employed by an umbrella company then you will have the same maternity and paternity rights as any permanent employee. As an employer, your umbrella should have policies setting out your maternity, paternity and shared parental leave entitlements, and you should contact them directly to request these.

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