Where an employee notifies their employer that they are pregnant after they have given notice of their resignation, will they 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 their employment in relation to the date that the baby is due.
A pregnant employee will be entitled to be paid statutory maternity pay if they have a minimum of 26 weeks' continuous service as at the end of the 15th week before the week the baby is due, which is known as the "qualifying week"; if their average weekly earnings are equal to or greater than the lower earnings limit for national insurance contributions; and if they are still employed by the employer during the qualifying week. A week for these purposes commences on a Sunday and ends on a Saturday. The fact that the employee is working out their notice period will have no impact on their right to qualify for statutory maternity pay. The right to statutory maternity pay will depend essentially on whether or not they are 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 they 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.