Where an employee who has given notice of her resignation notifies her employer that she is pregnant during the notice period will she be entitled to statutory maternity pay?
Whether or not the employee will be entitled to statutory maternity pay will depend on the timing of the termination of her employment in relation to the date that her baby is due. A pregnant employee will be entitled to be paid statutory maternity pay if she has a minimum of 26 weeks' continuous service as at the end of the 15th week before the week her baby is due, which is known as the "qualifying week"; if her average weekly earnings are equal to or greater than the lower earnings limit for national insurance contributions in force at the time; and if she is still employed by the employer during the qualifying week, ie her employment has not terminated before the beginning of that week. A week for these purposes commences on a Sunday and ends on a Saturday. The fact that the employee is working out her notice period will have no impact on her right to qualify for statutory maternity pay. The right to statutory maternity pay will depend essentially on whether or not she is still employed at some point during the qualifying week.
If the employer has the contractual right to make a payment in lieu of notice when an employee resigns, this could in theory cut the employee's length of employment short and mean that she would no longer be employed in the qualifying week. Such a course of action would not be advisable as it could deprive the employee of the opportunity to qualify for statutory maternity pay and could therefore be interpreted as pregnancy and maternity discrimination.