Childcare Vouchers

[Natalie84]

Hi

I am looking for advice on how to handle my childcare voucher situation.
I am currently on maternity leave with my second child and have been
claiming the vouchers. This month is the first month it will be smp only,
everything I have read on here and elsewhere told me I should receive
the vouchers on top of the smp. I have not!
I rang the voucher company that handles it just to confirm before I have to ring work and they told me that the scheme rules state the vouchers will not be given for any reason if there are no funds to pay for it. So as they can not be taken off the smp they will resume when I return to work.
I am going to ring my employer tomorrow but does anyone have any advice/experienced this?

Thank you.

[ThereisnoFinWay]

If you do a search on here there are a few threads on this which should have links to some helpful websites etc. HMRC guidance says that the vouchers have to be paid on top of SMP, I can't remember all the details now though as my fight on this was a couple of years ago now.

Good luck!

[Nolim]

I did not get cv when on smp. Hr said that it was considered unpaid leave.

[ThereisnoFinWay]

I remembered I had pm'd someone the links I had used so here you go (sorry there's a lot!);

www.hmrc.gov.uk/employers/sml-salary-sacrifice.pdf

www.hmrc.gov.uk/employers/sml-sal-benefits.pdf - Specifically; Following legislation in 2008 they must provide those benefits not just during Ordinary Maternity, Paternity, and Adoption Leave but also during Additional Maternity Leave.  and Non-cash benefits include: c) non-cash vouchers, such as childcare vouchers which can only be used by the employee for qualifying childcare and are not transferable 
www.personneltoday.com/articles/10/06/2009/51018/childcare-vouchers-and-maternity-leave.htm - specifically The prevailing view is that the vouchers are a benefit and employers should to follow this view to avoid any possible future claims from employees of sex discrimination or detriment suffered as a result of taking maternity leave. Revenue and Customs also views the provision of childcare vouchers as a non-cash benefit, rather than remuneration.
www.personneltoday.com/articles/29/12/2008/48827/how-to-deal-with-maternity-pay-salary-sacrifice-and-childcare.htm - specifically Ensure that any non-cash benefits, such as childcare vouchers, provided as a term of the contract continue during additional maternity leave where the expected week of childbirth is on or after 5 October 2008.
www.workingfamilies.org.uk/articles/parents-and-carers/caring-for-adults/summary-of-contractual-rights-during-maternity-leave - specifically
You are entitled to these benefits if you normally get them
Accrued contractual holiday
Employer pension contributions (during paid leave)
Company car and mobile phone (if provided for personal use)
Vouchers, such as childcare vouchers
Bonus for any time when you were at work and for the period of compulsory maternity leave
Health/life insurance
Pay review
Performance assessment
Normal employment rights such as redundancy pay
Suitable alternative work if made redundant
Opportunities for promotion

vouchers.employersforchildcare.org/media/Childcare%20vouchers%20during%20maternity%20leave%20(employers)-1.pdf  Specifically; Am I obliged to provide Childcare Vouchers during an employees maternity leave?
A. The 2008 changes to the legislation place a requirement on employers to treat the Additional Maternity Leave period (weeks 27-52) in the same way as the Ordinary Maternity Leave period (weeks 1-26), with regard to the provision of non-cash benefits. This includes Childcare Vouchers.
Employees already in the scheme before they go off on maternity leave are entitled to continue receiving Childcare Vouchers during their Ordinary Maternity Leave (weeks 1-26) and Additional Maternity Leave (weeks 27-52). All employees on Statutory Maternity Pay (SMP) continue to be entitled to the non-cash benefits they were entitled to as a term of their employment contract, whether they are in receipt of SMP, Maternity Allowance or receive no maternity payment.
Q. When is the employer obliged to pay the value of the vouchers on the employees behalf?
A. If you provide Childcare Vouchers as part of a salary sacrifice scheme, it is important to note the following:
 SMP cannot be sacrificed;
 Maternity Allowance cannot be sacrificed;
 Any contractual Maternity Pay that is paid over and above SMP can be sacrificed.
This means that you are obliged to continue to provide the Childcare Vouchers even if your employee has no salary to sacrifice. 

www.hmrc.gov.uk/employers/sml-salary-sacrifice.pdf
What is salary sacrifice?
Salary sacrifice is not a term that you will find in legislation. It describes a legally-binding change in the contractual arrangements between employer and employee - most commonly where the employment contract is amended to reduce the employee's entitlement to cash salary, and a non-cash benefit is provided. The value of the non-cash benefit may equate to the amount of salary 'sacrificed'. The effect of the salary sacrifice must be that the employee has given up the right to some of their cash pay. 
And also this article; www.personneltoday.com/articles/19/09/2008/47567/childcare-voucher-entitlement-doubles-to-52-weeks-from-5-october.htm Fellow Dundas & Wilson partner Mandy Laurie added: "Mothers who give birth on or after 5 October will be entitled to childcare vouchers for a year instead of six months as before. The provision of childcare vouchers is a contractual obligation, so employers who stop someone's entitlement - even mistakenly - could be subject to breach of contract or sex discrimination claims."

[deadlegs]

I was in a similar situation a couple of years ago when I queried the CV status before going on my 2nd maternity leave. I think it comes down to whether the childcare vouchers are classified as a contractual benefit or not - if they are then the company should comntinue to pay these during maternity leave and cannot deduct the money from your SMP (but can deduct any "enhanced" maternity pay over an above SMP). In my particular case the CVs were not classed as a contractual benefit and therefore there was no obligation on my employer to provide them.

Were you advised to stop claiming the vouchers during weeks 17-25 of your pregnancy? This is when DWP look at your salary to determine your rates of pay during maternity leave, so if you continued to claim vouchers during that time it could mean that you did not get the full amount of materity pay you could have been entitled to.

I'm not sure if this is something that you could also raise with your employer if it was something you were not made aware of, as you could be losing out on 2 counts (reduced salary during the "salary assessment" period as well as no voucher provision whilst on SMP). Some employers might look on this sympathetically especially if they have not been clear on the terms of voucher provision...

Hope that you get it sorted..

[Writemove]

I was refused the vouchers when in SMP. It took s few phone calls and letters but I fought it.

I got the vouchers - over £1k worth for free.

I called maternity action charity for advice on the wording.

I quoted the Hmrc link that a pp copied and worded it saying there must be some confusion.

They eventually back peddled but weren't going to give in easily.

[Writemove]

It boils down to the fact there had been no test case in court. You could be the first!

Online I stumbled across one voucher company's manual to employers. It's worded in such a way as to discourage employees from claiming.

It also gives standard answers to employees' arguments and tells the voucher company them at which point they should give in.

[Natalie84]

Hi thanks for replying. Good to know other people have received them.Think this is going to be hard work though. They just
keep saying they cant be deducted from smp and they will resume when
I return to work. Might give maternity action a call. Its worth over £1k..
lot to miss out on.

[sausagepasta]

Hi

Still me, just changed my username.
Well ive heard back off work and they now seem to be telling
me they will provide the vouchers but take it off my SMP...
This is what they have said

"I can confirm your child care vouchers will reduce your gross earnings.

You will receive your SMP as normal however as the child care vouchers are a deduction this will reduce your gross pay.

An example of this:

SMP £500

Exchange child care vouchers -£150
Total gross earnings = £350"

I've responded that they are not allowed to deduct from SMP
(previously they have said this as well) Have not heard back
yet though...

[KristinScottThomas]

It's because of this rule that we sadly decided not to offer childcare vouchers in our company.

[Model5]

Yes, you should get them, the same way you wouldn't have to return your company car or give up your private healthcare because you're on ML.

We are running a pilot ATM and are very aware that it could be a big cost if we had lots of expectant mothers.