Marks and Spencer enhance maternity pay entitlement – a look at what they are doing and how it compares with what the law requires

14th May 2024

Employment law, Newbury, Berkshire.

Retailer Marks and Spencer has announced enhancements to its maternity, paternity and adoption policies. From 1April 2024, Marks and Spencer have introduced six weeks of paternity leave at full pay and have doubled its maternity and adoption leave to 26 weeks at full pay.

This benefit sits far above the legal requirements in this area and has involved a multi-million pound investment by Marks and Spencer.

In the UK, employees are currently legally entitled to two weeks’ paternity pay. There is no legal requirement that these two weeks be paid at full pay. The requirement is to pay eligible employees statutory paternity pay (currently £184.03 per week) for these two weeks.

In terms of maternity and adoption leave, the law requires employers to pay eligible employees at the rate of 90% full pay for the first six weeks, dropping to £183.04 per week (or actual earnings if lower) for a further 33 weeks after this. Again, Marks and Spencer are offering a considerable enhancement.

If employers want to offer enhancement to statutory payments in these areas, they should consider including claw-back provisions so that the enhancement (or a proportion of it) becomes repayable in the event that the employee does not return to work (or only returns for a short period following leave). Any such provisions would need to be agreed in advance with employees as a change to the contract of employment (even if the enhanced payments themselves are only referenced in a policy).

Claw-back terms must be reasonable so should only cover a fixed and fairly short period following a return to work or should reduce incrementally over a period of time (so, for example, 100% of enhancement is repayable if the employee leaves without returning, dropping to 50% if the employee leaves within 6 months and 25% if they leave within 6-12 months with nothing being repayable thereafter). It would also be reasonable to disapply the claw-back in the event that the employee’s employment comes to an end by reason of redundancy.

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