What should an employer do if an employee gives birth without giving the required notice for taking maternity leave?

To be entitled to take statutory maternity leave, employees must notify their employer of their pregnancy by the end of the 15th week before their expected week of childbirth, or as soon as is reasonably practicable. The relevant legislation does not address what happens if an employee does not meet these requirements.

In very rare circumstances, an employee's failure to notify her employer of her pregnancy before the birth could be because she was unaware herself that she was pregnant until the birth. In this situation, provided that she gives notice as soon as reasonably practicable, she will be entitled to statutory maternity leave and pay.

However, the position is less clear if the employee was aware that she was pregnant but did not inform the employer within the required timescale before giving birth. An employer may be minded to dismiss an employee who takes leave to which she is not entitled. However, a dismissal in these circumstances is likely to be automatically unfair, as the reason relates to pregnancy, childbirth or the fact that the employee sought to take maternity leave. The dismissal could also amount to pregnancy and maternity discrimination.

The employer could decide to allow the employee to go on leave, but without the benefit of her terms and conditions while she is on leave and without the other rights that accompany statutory maternity leave, such as the right to return to the same job. However, this could still result in the risk of a claim for pregnancy or maternity discrimination.

It would be open to the employer to ignore the employee's failure to provide notice and treat her as being entitled to leave and the accompanying rights.

The employee's entitlement to statutory maternity pay is a separate issue. Employees are required to give at least 28 days' notice of their intended absence, or as much as is reasonably practicable. If the employer considers that it would have been reasonably practicable for the employee to give the required 28 days' notice for statutory maternity pay, it can inform her that her failure to do so means she is not entitled to it. The employee can ask an HM Revenue and Customs officer to make an official decision about her entitlement.