When a commission-earning sales rep goes on maternity leave, most businesses know they need to pay Statutory Maternity Pay. What many don't realise is that commission entitlement doesn't simply stop because someone is on leave — and getting it wrong can create legal exposure, damage trust, and leave you on the wrong side of an employment tribunal.

This article sets out the legal position in the UK, the practical questions that come up around deals closing during maternity leave, and how to plan a commission-protected handover that works for the rep, the team, and the business.

The Legal Framework

Commission during maternity leave sits at the intersection of several pieces of UK employment legislation:

The Equality Act 2010 prohibits discrimination on the grounds of pregnancy and maternity. This includes any detrimental treatment in relation to pay — and commission is pay. If a rep would have earned commission but for being on maternity leave, withholding it may amount to pregnancy discrimination.

The Employment Rights Act 1996 (ERA) provides the statutory framework for maternity leave, including the right to return to the same (or a comparable) role on the same terms and conditions. Commission plan terms are part of the employment contract, either explicitly or through custom and practice.

The Maternity and Parental Leave etc. Regulations 1999 set out the detailed rules on what terms and conditions are preserved during maternity leave. Regulation 9 provides that during Ordinary Maternity Leave (the first 26 weeks), a woman is entitled to the benefit of all the terms and conditions of employment that would have applied if she were not absent — except remuneration. "Remuneration" here has a specific legal meaning: it covers wages and salary. But case law has established that commission may or may not fall under this exclusion depending on the circumstances.

This is where it gets complicated.

Commission as Remuneration: The Key Distinction

The question of whether commission counts as "remuneration" (and is therefore excluded during OML) or as a contractual benefit (which is preserved) depends on the nature of the commission.

The European Court of Justice addressed this in Lewen v Denda (C-333/97), holding that a Christmas bonus linked to work performed was "pay" under the Equal Pay Directive. The broader principle is that where commission is directly linked to work the employee personally performed, it's treated as remuneration.

However, where commission relates to deals the employee originated or contributed to before going on leave — for example, pipeline they built that closes while they're away — the position is less clear-cut, and the equitable approach matters.

ACAS guidance recommends that employers take a fair and non-discriminatory approach to commission during maternity leave. In practice, this means:

The safest approach is to have a clear, written policy that addresses commission during maternity leave specifically. If your commission plan or employment contract is silent on the topic, you're leaving yourself exposed to disputes and potential tribunal claims.

Statutory Maternity Pay and Commission

Statutory Maternity Pay (SMP) is calculated based on the employee's average weekly earnings in the eight-week "relevant period" before the qualifying week (the 15th week before the expected week of childbirth).

If the employee earned commission during the relevant period, that commission is included in the average weekly earnings calculation. This can significantly increase the SMP entitlement if the rep had a strong sales period in those weeks.

The calculation works as follows:

A rep with average weekly earnings of £1,200 (including commission) would receive £1,080 per week for the first six weeks of SMP — significantly more than a rep earning the same base salary without commission.

This means that the timing of commission payments relative to the SMP qualifying period matters. Employers should not manipulate the timing of commission payments to reduce SMP entitlement — doing so would likely constitute pregnancy discrimination under the Equality Act 2010.

HMRC provides detailed guidance on SMP calculation for employers.

Deals That Close During Maternity Leave

This is the question that causes the most friction: what happens to deals the rep was working on that close while they're on maternity leave?

There are several scenarios:

Deals the rep fully worked and the buyer simply signs during leave

The rep did the discovery, ran the demo, negotiated the terms, and sent the proposal. The buyer takes three weeks to get budget approval and signs while the rep is on leave. In this case, withholding the commission would be difficult to justify — the rep did all the work.

Deals the rep started but a colleague progressed and closed

The rep had an opportunity at discovery stage. A colleague picked it up, ran the sales process, and closed the deal. Here, a split credit arrangement is reasonable — with the split reflecting the relative contribution.

Deals originated entirely during the rep's absence

A new inbound lead arrives, is assigned to the covering rep, and closes. The absent rep has no claim to commission on this deal.

The critical point is that you need to decide the rules before the maternity leave starts, not when a dispute arises. Ideally, these rules should be set out in the commission plan itself, not negotiated case by case.

For more on how to handle the broader topic of commission disputes when they arise, see our guide on resolving commission disputes.

Keeping-in-Touch (KIT) Days and Commission

Employees on maternity leave are entitled to work up to 10 Keeping-in-Touch (KIT) days without ending their maternity leave or losing SMP. KIT days are voluntary — the employer can offer them, but the employee is not obliged to accept.

If a rep works a KIT day and closes a deal on that day, they are entitled to be paid for the KIT day (at least at their normal daily rate, or as agreed). Whether commission on a deal closed during a KIT day is payable depends on the terms of your commission plan and the agreement around the KIT day itself.

Best practice is to agree in advance whether KIT days will attract commission on any deals progressed or closed. Many businesses treat KIT days as full working days for commission purposes — if the rep closes a deal during a KIT day, they earn the commission. This is the simplest and fairest approach, and it avoids creating a disincentive for reps to use KIT days productively.

Planning for a Rep's Maternity Leave

Good planning makes the difference between a smooth handover and a commission nightmare. Here's a practical framework:

Pipeline handover

At least four to six weeks before the planned leave start date, sit down with the rep and map their entire pipeline:

Document the pipeline handover in writing. Both the departing rep and the covering rep should have clarity on which deals attract what commission for whom.

Commission protection

Some businesses offer a "commission protection" arrangement during maternity leave. This might take the form of:

None of these are legally required, but they're increasingly common among businesses that want to retain top-performing sales talent. The cost of replacing a good sales rep — recruitment fees, ramp time, lost pipeline — far exceeds the cost of a commission protection arrangement.

Covering rep arrangements

The rep covering the maternity leave needs their own commission clarity:

Ambiguity here creates problems on both sides. The covering rep has no incentive to close inherited deals if they don't earn commission on them. The absent rep feels cheated if they lose commission on a deal they originated.

Returning to Work and Commission Plan Changes

When a rep returns from maternity leave, they're entitled to return to the same job on the same terms — or, if that's not reasonably practicable (for example, after Additional Maternity Leave of more than 26 weeks), a suitable alternative role on terms no less favourable.

If the commission plan changed while the rep was on leave — new rates, new territories, new quota — the returning rep must be placed on terms that are no less favourable than what they would have been on had they not taken leave.

This doesn't mean the rep is frozen on the old plan forever. It means they should be transitioned to whatever plan their peers are on, as if they'd been present for the change. If the new plan is less generous, you need to be able to show that the change would have applied to them regardless of the maternity leave.

Common mistakes include:

Any of these could constitute unfavourable treatment related to maternity leave, which is automatically unfair under the Equality Act 2010. The returning rep should be placed back into the commission structure as if they had been performing at their pre-leave level.

Common Mistakes Employers Make

Based on the patterns that come up repeatedly, here are the most frequent errors:

No written policy. The commission plan says nothing about maternity leave. When it happens, decisions are made ad hoc, inconsistently, and defensively. This is the single biggest source of disputes.

Stopping all commission from day one of leave. Unless your commission plan explicitly excludes commission during maternity leave (and even then, the enforceability of such a clause is questionable), stopping commission entirely is risky. Commission on deals already closed or in advanced pipeline stages should generally still be paid.

Excluding commission from SMP calculations. HMRC is clear that earnings used to calculate SMP include commission paid during the relevant period. Excluding it understates the SMP entitlement and is a compliance failure.

Failing to accrue the commission liability. Finance needs to know that commission obligations don't disappear during maternity leave. If the rep is entitled to commission on pipeline deals, that liability should be accrued — not ignored until they come back and ask about it.

Treating the returning rep as a new starter. Resetting territories, quotas, and commission tiers as if the rep is starting fresh penalises them for taking maternity leave. This is exactly the kind of detrimental treatment the Equality Act is designed to prevent.

Not communicating the plan. Even where the policy is fair, failing to communicate it clearly before the rep goes on leave creates anxiety and distrust. The rep should know exactly what they'll earn, on what deals, and when — before their leave begins.

Case Law Worth Knowing

A few UK and European cases have shaped the current understanding of commission during maternity leave:

Hoyland v Asda Stores Ltd [2006] CSIH 21 — The Court of Session held that a bonus calculated by reference to work done before maternity leave was not "remuneration" within the meaning of the regulations and should be paid during leave. This case established that bonuses linked to past performance (analogous to commission on deals already worked) should not be withheld during maternity leave.

Lewen v Denda [1999] ECR I-7243 — The ECJ held that reducing a Christmas bonus pro rata to reflect maternity absence could constitute sex discrimination. The principle extends to commission: pro-rating commission solely because of maternity absence, without reference to actual contribution, is discriminatory.

Peninsula Business Services v Donaldson — An employment tribunal found that failing to pay commission on deals that were "in the bag" before maternity leave started was discriminatory. The employer's argument that commission was only payable on deals closed during active employment was rejected.

These cases don't create a blanket rule that all commission must be paid during maternity leave. But they establish that employers need a clear, fair, and non-discriminatory approach — and that erring on the side of paying commission on deals the rep contributed to is safer than withholding it.

How Commission Software Helps

One of the practical challenges with maternity leave commission is tracking which deals the departing rep contributed to, at what stage, and what the commission entitlement should be. When commission is managed in spreadsheets, this information is often lost or reconstructed after the fact.

A commission management system that records pipeline attribution, deal stages, and commission splits at the point they're agreed — rather than after the fact — makes the handover process cleaner and the returning rep's entitlement clearer.

It also helps finance accrue the commission liability correctly, which matters for the reasons set out in our guide on how commission is taxed in the UK.

Getting It Right

Maternity leave and commission is an area where doing the right thing and doing the legally safe thing happen to align. Reps who feel their commission was handled fairly during maternity leave come back motivated and loyal. Reps who feel they were short-changed come back looking for a new job — or a tribunal claim.

The key steps are:

  1. Write a clear commission-during-maternity-leave policy and include it in the commission plan
  2. Plan the pipeline handover early, with documented commission splits
  3. Include commission in SMP calculations as required by law
  4. Accrue commission liabilities during the leave period
  5. Return the rep to their role on equivalent terms, including commission plan and territory
  6. Communicate everything clearly, in writing, before the leave begins

None of this is particularly complicated. It just requires forethought, a written policy, and a commitment to treating the process as normal business planning rather than an exception to be managed reactively.

For related guidance on commission entitlements when a rep's employment status changes, see our article on commission during notice periods.

This article provides general guidance on UK employment law as it relates to commission during maternity leave. It does not constitute legal advice. Employment law is complex and fact-specific — consult a qualified employment lawyer or ACAS for advice on your specific circumstances. ACAS can be contacted on 0300 123 1100 or at acas.org.uk.

C

Commit Team

Building commission management software for UK sales teams.

Track commission entitlements with confidence

Commit records pipeline attribution and commission splits so nothing falls through the cracks during leave handovers.

Request Demo