Redundancy notice just before I go on mat leave - OMP or SMP?

(29 Posts)
Spudoolickay Wed 03-Apr-13 10:39:05

Hi All,
After the current consultation period it is likely that I will be made redundant in May. I will then (^I think^) be given 8 weeks notice, during which time I am due to start my maternity leave.

I am repeatedly asking HR what happens wrt my maternity leave payments and I have had several unclear replies (possibly because they aren't clear what I am asking). The gist of the replies seems to be that whilst I would qualify for SMP, I would not qualify for OMP. Obviously there's a significant difference since OMP would assure me a full 'salary' for 4 months, whilst SMP is around one quarter of that salary.

They say that I would not be an active employee so would not qualify for OMP, but in fact I would be still working for the company (albeit working my notice) for several more weeks.

If they are correct then this seems very unfair, since I am unable to find alternative employment, and would still be officially working for the company for 2 weeks after the birth of my baby, during which time - if I weren't pregnant and going on maternity leave - I would have been getting a full salary!

Does anyone have any experience or advice on what seems to be a very grey area?

difficultpickle Wed 03-Apr-13 10:42:14

I'm no expert but wouldn't it depend on when your last day of employment is? I'd imagine it could be a combination of both - OMP for the period you are still technically employed and then SMP from when your employment has finished. I'd doubt that your employer could pay you OMP when you are no longer an employee.

Spudoolickay Wed 03-Apr-13 10:53:30

Hi bisjo I've looked on maternityaction and it looks like you're right.

It's crazy though - it's not as if I can get another job immediately that I leave my previous one, so I have no choice but to take a cut in income that I wasn't expecting... How am I supposed to pay a mortgage etc?

racmun Wed 03-Apr-13 12:41:33

I'm not sure but your employer needs to be very careful. Is it a true redundancy situation? Are you the only one? Are you truly redundant or is it a case if them wanting rid of you because you're pregnant. If you think this might be the case then it's sex discrimination and you could take them to an employment tribunal.

I think you need to get advice from an Employment solicitor who is an expert and will read through your employment contract.

prettybird Wed 03-Apr-13 12:49:59

Dh had to make someone working for him redundant when she was pregnant (the funding for her contract ran out, so it was a genuine case). Iirc, he had to pay her SMP (90% of salary and then the SMP rate for the next 33 weeks) even though she technically was no longer on the books - but at least the company could claim the money back.

From [[http://www.xperthr.co.uk/faqs/topics/4,39/pregnancy-and-maternity-rights.aspx?articleid=87876&mode=open#87876 this link] one option would have been to pay all the SMP up front in a lump sum, but since more NI contributions might have to paid, neither "side" might want to do that.

prettybird Wed 03-Apr-13 12:50:42

Link done properly this link

Spudoolickay Wed 03-Apr-13 14:30:07

Hi, thanks for the responses.
Yes it's a true redundancy situation, there are 19 of us now 'at risk' and 15 of us will go, I'm pretty sure I will be one of the 15. I'm the only pregnant one. It has come out of the blue and we have 30 days to find alternative employment within the company (which is highly unlikely for me in my current situation!).

HR have told me I will only get SMP which is £136 per week - they say this is the case whether I have worked there 26 weeks or 26 years.

I'm wondering if I'd be just as well going on mat leave early rather than being at work, to be honest, but I have to give them a month's written notice to move the date of my mat leave. It would mean that I effectively didn't work my notice though. And of course the effect of that is a 'free holiday' which I would then potentially have to pay back at the other side if I am lucky enough NOT to be made redundant.

prettybird Wed 03-Apr-13 14:33:53

Has HR confirmed that you will get 6 weeks at 90% of your usual salary before you move onto the c.£136/week?

Because that is also a statutory part of Maternity Pay.

Spudoolickay Wed 03-Apr-13 14:36:48

The response I got was

"I have now received confirmation that this would be just SMP rather than the full OMP if your employment terminates prior to your maternity leave starting and therefore you would not qualify for occupational terms as an active employee would. Our policy only refers to statutory entitlement in this situation. I have also followed up the employment legislation with this respect to be 100% sure and I can confirm the statutory element is correct.

The statutory rate for this year is £136.78 per week."

She doesn't say anything about 6 weeks at 90%

prettybird Wed 03-Apr-13 14:37:39

But you probably need to get "proper" advice if your company offered an enhanced package that you are now apparently not able to take advantage of.

You'd need to have a close look at your contract and your company's maternity leave policy.

prettybird Wed 03-Apr-13 14:38:43

Cross-posted.

Spudoolickay Wed 03-Apr-13 14:39:46

She has followed this up by telling me that my employment could effectively 'terminate' on the day after the consultation ends, and I would be paid for my notice period, but it depends on if they wanted me to stay and work or not and she can't pre-empt that.

If I was terminated on the day after the consultation ends then this would be 7 weeks before my mat leave was supposed to start.

AnythingNotEverything Wed 03-Apr-13 14:45:58

I can't help with the mat leave situation and payments (pps are much more knowledgable than me!) BUT you have as much right to redeployment as you're at risk of redundancy as anyone else does. If other internal roles suit your skills I'd be applying for anything and everything and letting them decide who is best for the role!

Spudoolickay Wed 03-Apr-13 14:49:44

"I'd be applying for anything and everything and letting them decide who is best for the role!"
I am doing, but as far as I can tell the roles going in the company at the moment are for immediate occupation, and I wouldn't be able to take them up til at least November, so I am thinking that I don't stand much chance.

damnitdamnit Wed 03-Apr-13 14:49:51

I am not sure if it would be the same for you but coming up to my mat leave starting there was a possibility of redundancy for me and I was advised I would be safe if I went on to mat leave before the verdict. I therefore planned to go on mat leave at my earliest opportunity so I would enter redeployment on my return. In the end our team were not made redundant so I therefore started my mat leave later than initially planned. My reasoning was better to be paid for more and then enter redeployment on return that just get the smp. Not sure if this was because I worked for the local authority or not though.

prettybird Wed 03-Apr-13 14:52:05

So would all the others be "let go" hmm the following day - or just you?

Spudoolickay Wed 03-Apr-13 14:55:47

damnitdamnit - I couldn't enter redeployment on return from mat leave, my company wouldn't do that. We will all be given notice on the same day, and have different amounts of notice depending on time served.

prettybird - I guess so, but I don't know

Spudoolickay Wed 03-Apr-13 14:56:34

I am in the union, I am wondering if it's worth a call to them for some advice, or is there a better organisation I could consult?

prettybird Wed 03-Apr-13 14:59:12

Do both: ring your union (after all, you've paid your dues) and ring ACAS for advice.

damnitdamnit Wed 03-Apr-13 15:06:41

The way I was told was that I was protected from redundancy whilst on mat leave. Therefore if I went on mat leave before they redundancies we give out I would be safe. If there was no job to come back to then I would enter redeployment. Same happened to a colleague who was already on mat leave all other equivalents were made redundant but she returned 5 months later. I have no idea to why though.

prettybird Wed 03-Apr-13 15:13:09

You might find this useful.

Spudoolickay Wed 03-Apr-13 15:18:05

damnitdamnit - unfortunately I can't go on mat leave now as I have to give a month's notice if I want to move the date, which would now take me beyond the day they will announce the redundancies.

In other words, if I gave notice today then this would take me to 3rd May, but the day of the announcement is going to be 2nd May.

So it's a non-starter but I see what you are saying.

prettybird Wed 03-Apr-13 15:27:32

If you are beyond your 15th week before your due date, then they must pay you full SMP, no matter when they make you redundant.

Also, your redundancy payment is on top of your SMP.

That link I just gave you has lots of useful numbers for your to contact for advice - including details of the "Statutory Payments Dispute Team - Claims for SMP when employer is insolvent or refuses to pay SMP." grin

TerracottaPie Wed 03-Apr-13 15:27:44

Is it one month notice or 28 days? I have to give 28 days notice to change the start of my maternity leave.

Not that that helps you with anything but if it was 28 days then you'd get in before the announcements if you put the change in writing today.

Must all be pretty stressful for you sad

prettybird Wed 03-Apr-13 15:34:10

Also, the way you are discounting your chances of getting one of the few roles that are still around is unlawful. The fact that they are for "immediate occupation" (although you could do them for the next 7 weeks) and that you won't be around until November is irrelevant. It is your ability to do the job (pregnancy aside) that is the only thing they are allowed to consider.

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