Maternity - looking for feedback from HR staff and employment lawyers (and anyone else)

[seoladair]

In a nutshell, my employer is disputing my right to maternity pay. HMRC has ruled that I am eligible, and my employer is now contesting this on the grounds that they do not consider me to be an employee. (This is very contentious in itself). It is also irrelevant, as HMRC makes SMP provision for casual workers who fulfil certain conditions, and I have fulfilled all of them.

HR kept saying a meeting would not be necessary, so I had to email and write to point out the casual worker provision to them. Their replies always ignored that point. They just kept stonewalling and writing "but you are not an employee so you can't have SMP or contractual maternity pay."

Eventually I had a meeting with HR. I reiterated the point about provision for casual workers. They replied that although they had been paying employers' secondary NICs for me, they weren't actually liable to have done so, therefore they wouldn't have to pay maternity pay.

I then asked what the point of 10 years of Class 1 NIC deductions had been, and HR said "that's a legal question we're not going to answer."

HMRC are now sending in a local compliance team.

Your reactions please...

[deepfriedcupcake]

How soon are you due to go off on ML. I haven't a clue on the technical side but I should think it would help if HMRC are looking into them, is that in general? Have you got something in writing from HMRC you can pass onto HR, or could they have a chat with them directly re your case?

[KatieMiddleton]

Gosh they do sound rather stupid. Why on earth, if HMRC are saying you're eligible and you're not trying to get other benefits would they dispute it? Its not like they have to pay SMP from their own pockets... they get it back! Do they want to take you to employment tribunal to establish your employment status?!

Just out of interest, why is it they don't think you're an employee? Do you have the right to decline work offered or similar?

[piprabbit]

Sounds like the company have their fingers stuck in their ears and are saying "nyah nyah nyah, can't hear you".

Is it a very male company, that doesn't have to deal with many pregnant women? Or are your particular employment circumstances pretty unique? They really could be trying to deal with it all in a far more supportive, constructive way - even if they genuinely do think they are right.

[KatieMiddleton]

I forgot to add I think you can claim SMP direct from HMRC in the unusual event of a dispute with an employer.

[prh47bridge]

Your employer is being extremely stupid. If they continue to refuse to pay HMRC can fine them. They may also be held to be guilty of sex discrimination.

Just to get a little technical, they only get 92% of the SMP back from HMRC unless they are a small employer, in which case they actually get back more than they pay.

I wonder if the reason they are being awkward is hinted at in their statement about "SMP or contractual maternity pay". If there is contractual maternity pay for their employees in addition to SMP, it may be that they think you aren't entitled to it and paying SMP will weaken their position legally. But that doesn't change the facts. HMRC has told them to pay up. They can appeal to the Tax Commissioners provided they do so within 30 days of the decision but, barring a successful appeal, they have no choice. They have to pay.

[KatieMiddleton]

I suspect the employer is worried about having to pay other benefits like holiday pay and possibly backdated benefit payments. But if they've been deducting class 1 NI it just seens very odd to quibble about SMP.

[seoladair]

Thanks for all these comments. I'm glad you think they're being stupid - it makes me feel better!

If they have been treating people as self-employed when they ought to have been paying NICs to HMRC for them, would that be a reason for them refusing to accept my employed status? I mean, if they paid SMP, would they become liable to pay employment benefits not just to me, but to a whole group?

Can HMRC refuse their right of appeal if their grounds for appeal are spurious?

If HMRC finds that there have been major breaches, does the Head of HR carry the can, and would that explain why she has been trying to bully and intimidate me?

It's just sad - I worked there really happily for about 10 years, and pregnancy has really messed things up. I can't believe this can happen. My baby is now 3 months old, and this has been dragging on since the beginning of the second trimester.

Here are some facts which reply all of your questions....

1. My employer is a major and prestigious higher education establishment.
   

1. There is a very large group of hourly-paid staff who are treated as employees, but who are otherwise freelance.
   

1. There is another group of people on zero-hours contracts or no contracts at all. I have never had a contract in spite of requesting one.
   

1. Some people do exactly the same work as me but are treated as wholly self-employed i.e. no PAYE or NIC deductions. I suspect this is an HR Dept. mistake. Those like me who have been working for about 10 years have been treated as employed. Those employed in the past 5 years or so have been treated as self-employed, so it's inconsistent.
   

1. I have been paying into the college pension for several years, as well as paying NICs. I have an employee number and staff card, membership of library, college email, invitations to staff meetings. I receive a monthly payslip
   

1. I have a limited right of substitution i.e. I can ask college to book deputies for me. This is not incompatible with employment as shown by a tribunal against Glasgow City Council a few years ago. Furthermore, the hourly-paid group who are treated as full employees are allowed to ask the college of book deputies for them.
   

1. No holiday pay has been paid to me, ever. When I asked about this, they said that it was included in my hourly rate. However, it was never mentioned on my payslip. After I inquired about it, they changed the payslip for the entire hourly-paid staff, to show a holiday pay deduction. But this seems completely arbitrary.
   

1. After they had said I wasn't entitled to maternity pay, they amended my payslip. Instead of having an employee number, i now have a "personal reference number".
   

1. The Head of HR is a woman, and a mother. She has been just vile. However, the overall Head of Strategy, to whom she reports, is a man. I suspect her has been telling her what to do.

[prh47bridge]

It may be that this situation has opened up a can of worms for them, which could explain their behaviour. It may be, for example, that they have been underpaying Employer's NIC for years believing that they didn't have to pay for you and some other employees, since they apparently don't think you are an employee. They may therefore face having to pay the missing NIC contributions plus any penalties HMRC impose.

An appeal can be rejected if they are out of time. However, provided the appeal is within the time limits it has to be heard. It would be pretty pointless allowing an appeal to the Tax Commissioners if HMRC could simply reject the appeal without referring it to the Commissioners.

HMRC won't care who is responsible for any breaches that have taken place. They will fine the establishment, not individual members of staff. Who carries the can internally is up to senior management based on how the situation arose. If the Head of HR has been giving poor advice and this falls within her area of responsibility she may well end up carrying the can. Sadly, organisational politics being what they are, she may also end up carrying the can even if she has given good advice which has been ignored or overruled.

[seoladair]

I can't see the point of them appealing. Whether I'm an employee or a casual worker, I'm entitled to maternity pay. By appealing, they have caused HMRC to investigate them and send in a compliance team. My employer must have known that would happen. If you were in charge of HR, why would you do that?
Originally I think they were trying to intimidate and misinform me so that I wouldn't realise I was entitled to maternity pay. That much I understand. But once HMRC had issued a decision, why would they challenge it? I'm really interested in hearing opinions from HR professionals.

[An0therName]

my goodness - has the union been involved
-its shocking and I wonder if the TES forums might be interested

[prh47bridge]

I wouldn't expect an appeal to result in a compliance team coming in. Their presence may be purely coincidental or it may be that the information now in HMRC's possession, possibly as a result of your initial referral of the case to them, indicates that there are a number of issues that need investigating.

If your employer has appealed it is presumably because they disagree with the decision and don't think you are entitled to SMP. They may be concerned that the decision will open up other liabilities which they won't be able to reclaim from HMRC.

[seoladair]

No, it's not coincidental. I asked HMRC a couple of weeks ago how things were progressing (as I'm now very overdrawn) and they said the case was being passed to a Higher Officer and that local compliance was to get involved. A few days ago I was told by HMRC that that specialist compliance officers have arranged an appointment with the HR Department.

prh47 - I think they have known all along that I am entitled to maternity pay, but you've hit the nail on the head; I unwittingly opened a can of worms when I claimed maternity pay.

What sort of issues would bring compliance in?

[seoladair]

anothername
yes, I have a union lawyer. She's not very sharp though, and is also very busy. I'm wondering about transferring to a specialist pregnancy discrimination lawyer but can't afford it as I haven't received any maternity pay or maternity allowance.
I'll have a look at the TES forums. Due to the increasing casualisation of teaching in higher education, I'm sure my case is not unique (though I suspect it is pretty bad).

[prh47bridge]

A continuing refusal to pay SMP following an HMRC ruling could be enough to bring in a compliance team simply to force the employer to pay SMP. A team would also arrive if there was reason to believe the employer had been breaking the rules in any way - income tax, NI, VAT, whatever. The comment about local compliance getting involved may mean that they are simply trying to enforce their ruling but it could mean that something more significant has been uncovered.

[seoladair]

I knew when I decided to go ahead and forward the case to HMRC that it would be difficult, but I didn't realise that my employer would be so kamikaze and try to take on HMRC. Everyone I spoke to before I handed the case over to HMRC (ACAS, HMRC Disputes Team, a legal advice helpline etc) said that my entitlement was not in doubt.
Another question for HR and law professionals - my employer has been allowed to put forward a first appeal. If the formal decision also goes in my favour, and my employer's grounds for appeal are spurious, can their right to a second appeal then be thrown out?
They are not providing any legal reason for refusing to pay - they just keep saying that I am a casual worker.

[prh47bridge]

If the appeal is rejected they may be refused leave to appeal against the decision, particularly if the grounds are spurious.

Even if you are a casual worker that is not an argument for refusing to pay you SMP. The rule for casual workers is that if they have to deduct PAYE and Class 1 NICs from your earnings they must pay SMP. They clearly have been deducting PAYE and NICs so they don't seem to have a leg to stand on.

[seoladair]

Thanks prh47. I hope they aren't allowed another appeal - I really need to be paid.
HR have also refused to let me work any KIT days, even though the handbook states that staff can work KIT days. HR have also said that I won't be able to join the childcare salary sacrifice scheme. It seems they are cracking down very hard on me because I questioned their refusal to pay maternity pay.

[KatieMiddleton]

Gosh what a mess! I know quite a bit about this sort of thing having done a consultancy job on a similar topic. Check out HMRC vs Weight watchers if you like case law. Very interesting reading.

Of course if you are an employee you can claim constructive dismissal... which if they continue to behave like this gets more likely.

My advice to employers is always to minimise the prospect of tribunals/HMRC by having their house in good order because it leads the way for more money to be spent... even if you [the company] win it still potentially costs tens of thousands per claim.

If you've not already make a grievance outlining everything do so and I'd be tempted to cc it to whoever is at the top as well, as they will ultimately carry the can and may have no idea what's been going on until HMRC turn up. Rarely would I advocate such a thing but it sounds like your position is becoming untenable and not only could you have a potential claim for constructive dismissal but also for maternity related discrimination and claims relating to missing holiday pay going back years (limitation is usually 6 years). Never mind the SMP!

Somebody somewhere's cocked up. This is not normal practice so hopefully once someone with common sense catches on they'll sort it out. But if not, once the grievance meeting/hearing option is exhausted, you should consider making a tribunal claim to get them to get a move on and so you don't run out of time to make a claim.

[seoladair]

I'm getting lots of useful advice on this forum - thanks to all of you.

I just quickly googled HMRC v Weight Watchers (one article was entitled HMRC Gets Heavy With Weight Watchers...). It was really helpful, as the question of who pays deputies was important. My employer pays my deputies, always.

Another question - if I went to a tribunal, would the 3 months date from my employer's refusal to pay after a final HMRC decision? Or from the first informal decision in June?

[KatieMiddleton]

Possibly the former as that's the point you exhausted the internal processes but it depends on the specifics of your case. You can't claim for constructive dismissal unless you've actually resigned. But I think there's plenty for a discrimination claim with a harrassment element that would increase your award if you won and you don't need to leave your job to make the claim.

[KatieMiddleton]

Have thought some more and decided there's not enough info on the thread to decide the date of incident or a final straw in a series if incidents.

Give the Russell Jones & Walker run legal helpline a call via NCT to discuss your case in more detail. I think it's option 5 on general enquiry line and costs just a local call rate.

[seoladair]

Several people have mentioned harrassment to me. Would this be directly linked to their refusal to pay maternity pay? They have certainly patronised me. When my midwife wrote to them to point out the HMRC guidelines, they wrote back to me, saying "This is a complex area of law. The HMRC guidelines do not apply to you." I knew they were wrong about this, and it was very satisfying when HMRC took my side.

I'm tempted to take it to tribunal. I'm lucky that my position is not untenable, as I get on really well with my colleagues. The head of dept and admin office sent me a huge bunch of flowers after my baby was born.

Unfortunately the Head of HR has now gagged them. They are banned from discussing anything relating to my case. I'm just worried that my lovely colleagues would be bullied into saying negative and untrue things about me at a tribunal. The HR woman seems to be a bit deranged (possibly because she is panicking about the mess, and taking it all out on me).

[KatieMiddleton]

Well you tell them you're pregnant. They then start trying to deny your employee status, refuse to pay you statutory benefits, refuse to engage with you for quite some time and change your employee number to a personal reference number. Then then refuse to back down even after the HMRC ruling eventhough they are producing no evidence (from what you've said).

However, you can't make a claim for harrassment at a tribunal. If there is an element of harassment as part of a legitimate claim (ie maternity discrimination) that will make a difference when calculating any award only.

Claims for bullying and harrassment can also be made via civil court under health and safety legislation but from what you've posted it doesn't sound like you have a claim for this.

[seoladair]

Great - that all makes sense. I will speak to my union lawyer, and possibly speak to a pregnancy discrimination lawyer too. More anon....
Thanks to all of you.