SMP ineligibility letter

A small number of pregnant employees will not be entitled to statutory maternity pay (SMP) during their maternity leave either because of their short service or their low average weekly earnings. To cover those cases, use our SMP ineligibility letter.

SMP qualification

A pregnant employee will be eligible to receive SMP if she meets all of the following conditions:

• she’s been employed by you for a minimum of 26 weeks at the end of the 15th week before her expected week of childbirth
• she continues to be employed by you into the 15th week before her expected week of childbirth
• her average weekly earnings are equal to or greater than the current lower earnings limit for National Insurance contributions.

So, conversely, if she falls outside any one of these conditions, she won’t qualify for SMP. She also has to give you proper notification of her pregnancy and provide you with a MAT B1 form stating her expected week of childbirth. 

No SMP entitlement

Therefore, the two main reasons for an employee not being eligible to receive SMP during her maternity leave are because:

• she has insufficient continuity of employment
• her average weekly earnings are below the lower earnings limit for National Insurance contributions.

So, our SMP Ineligibility Letter has two optional paragraphs for you to select which one to use dependent on which of the above scenarios applies. In the latter case, we’ve also set out further detail on exactly how average weekly earnings are calculated over an eight-week calculation period. The first scenario will apply where the employee was already at least a couple of weeks pregnant when she came to work for you - and, of course, she was under no obligation to declare this at interview. The second scenario will apply where the employee is either very part time or casual so doesn’t earn much on average, or where she’s got pregnant again when already on maternity leave and the eight-week calculation of average weekly earnings takes place over all or some of her period of unpaid additional maternity leave, i.e. when she’s no longer receiving any SMP or other contractual pay from you.

Maternity allowance

Employees who are not entitled to receive SMP may be eligible to receive maternity allowance (MA) from the government. The employee should be referred to her local Jobcentre Plus office or social security office for a claim form. You must first give her a Form SMP1 explaining why she’s not entitled to SMP. Our letter covers this.

Other benefits

Just because an employee isn’t entitled to SMP doesn’t mean she won’t continue to accrue other contractual benefits during her maternity leave. As her contract of employment remains in force, she will still be entitled to receive all her other contractual benefits (except, of course, for salary). So benefits in kind must be continued and annual leave entitlement will continue to accrue. We’ve covered this in our letter. Special rules apply in relation to pension scheme contributions and the position here is also set out in our letter.