Striking and eligibility for maternity pay

There are 3 components of maternity pay that resident doctors may be eligible for. These are occupational maternity pay (OMP), statutory maternity pay (SMP) and maternity allowance (MA).

Industrial action can impact your eligibility for each component of maternity pay in different ways.

OMP (occupational maternity pay)

Going on strike should not affect your eligibility to OMP.

You are entitled to OMP if:

• you have accrued at least 12 months’ continuous service with the NHS 11 weeks before your due date.
• you intend to return to work within 3 months after your maternity leave has ended.

The TCS for resident doctors does not explicitly mention whether taking part in industrial action impacts how the 12 months’ of continuous service is accrued. This is unlike SMP (see below).

Our legal interpretation is that the contract should be read literally so that time would continue to accrue whilst striking. There is a risk that an employment tribunal may interpret this differently.

If you are experiencing any issues on this, please contact our member relations team if you have a question about your personal circumstances.

SMP (statutory maternity pay)

Going on strike could impact your entitlement to SMP.

Participating in strike action could affect how your employer calculates this 26-week period. If you strike on any day in a week, your employer may discount that whole week in which you took action from their calculation of the period of continuous employment needed for SMP (26 weeks).

This means that, in some circumstances, taking strike action could result in you not accruing enough continuous service to be eligible for SMP. For example:

• if you had only just worked 26 weeks with your employer by week 15 before your due date but took strike action on one of those weeks (thus bringing you down to only 25 weeks continuous service)
• or, if you had worked 27 weeks with your employer by week 15 but had taken strike action on two of those weeks (again, bringing you down to only 25 weeks continuous service).

When considering the impact of a discounted week, you only need to think about the number of weeks in total you have accrued in the valid period (i.e. the period of continuous employment before the 15th week before your due date) minus the number of discounted weeks.

A discounted week does not break your overall continuity of employment and reset your accrual of weeks of continuous employment at zero. A discounted week would just not itself contribute towards the sum of 26 weeks of continuous employment you need before week 15 of your due date to qualify for SMP.

MA (maternity allowance)

Going on strike will not affect your eligibility for MA (maternity allowance).

If you do not qualify for OMP or SMP you may be entitled to MA, which can be applied for via Gov.uk.

Find out more about the different types of maternity pay in general.

Striking and maternity pay amount

OMP (occupational maternity pay) & SMP (statutory maternity pay)

Going on strike can impact the amount of OMP or SMP you receive.

This can occur if you go on strike during the eight-week ‘set period’ in which your average weekly earnings are calculated for the purposes of OMP and SMP.

As doctors are paid monthly, this eight-week period is represented by two payslips. The set period is calculated backwards from your last payday 15 weeks before your expected due week.

You will not get paid for the days that you take industrial action. If striking reduces your earnings during the set period, then this may reduce the amount of maternity pay you will receive. This is due to payslips with a reduced amount of earnings being used to calculate your average weekly earnings.

MA (maternity allowance)

Going on strike is unlikely to impact the amount of maternity allowance you will receive.

This is set at £172.48 or 90% of your average weekly earnings (whichever is less) per week. This is not likely to impact you as your average earnings are unlikely to go below £ 172.48 even if you do strike.

Striking whilst on maternity leave

You cannot strike whilst on maternity leave. This is because you would not be expected to be on a shift on the days of industrial action.

You can though attend protests and demonstration in support of industrial action if you wish.

Please get in touch with us for further information.

Support from the BMA

If you do not take part in industrial action, you are still eligible for support from us in relation to workplace issues. The health and safety of our members is vital.

You should contact us if you in any way feel pressured by trusts to continue working during industrial action or if you are pressured to undertake work beyond the remit of your individualised pregnancy risk assessment if you decide to work.

If so, please contact our member relations team if you have a question about your personal circumstances.