An employee is entitled to Statutory Maternity Pay (SMP) as long as she has been employed for 26 weeks by the end of the Qualifying Week which is the 15th week before the expected week of childbirth (EWC). She must also have ceased work. SMP is available to ‘a woman who is or has been an employee’ (Section 164(1) Social Security and Benefits Contributions Act 1992) therefore it doesn’t matter if she takes maternity leave, resigns, or is dismissed for any reason including redundancy or even misconduct; provided she has qualified for SMP and has ceased work. The important bit is the Qualifying Week which is the 15th week before the EWC. An employee who is dismissed or resigns at any time after this is still entitled to the full SMP entitlement from her former employer.

If she hasn’t reached the Qualifying Week she won’t normally qualify for SMP because she won’t satisfy the rule on continuity of employment although this is ignored in the rare case of a very premature birth before or during the Qualifying Week. In such a case the employee’s employment is calculated as if she had remained employed up to the end of the Qualifying Week (Regulation 4(1) Statutory Maternity Pay Regulations).

The rule is also relaxed if the employer dismisses the employee before the Qualifying Week to try and avoid SMP liability. In such a case she is deemed to have the necessary continuity as if she had 8 weeks continuous employment to the date of the dismissal (Regulation 3(1) SMP Regulations).