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Possible maternity discrimination(10 Posts)
NC'd for this one. Hoping one of you lovely employment lawyers can help.
We have a share scheme at work (a SIP). I've asked about taking up the option to join this year (as I have done in previous years). I meet the eligibility criteria (being employed and not under notice on two dates), but I will be on maternity leave receiving SMP on the latter date, when the shares are purchased.
We can contribute the lowest of:
10% of annual pay
If I was on my normal salary then I would be capped at £1,000. SMP is obviously less.
I have been told I cannot participate in the share scheme as I will only be on SMP in the month payment is taken.
My queries are:
1) is this right? or am I being discriminated against because I'm on maternity leave?
2) If it's not right, do they have to allow me to buy them (am I then capped at SMP or can I pay up to the £1,000 - if so, how do I get tax relief?) or do they need to give me the shares for free.
My employer accepts that my salary sacrifice for childcare vouchers continues, in that I don't lose any SMP but continue to receive the vouchers.
As far as I can tell you should be able to continue to participate, based on your SMP. Why do they think the fact that you are on SMP means you can't contribute?
The HMRC guidance doesn't specifically state that but by googling share incentive plan maternity leave loads of employer-specific guides to SIPs come up, all of which say that contributions can be made from SMP.
If the only reason that they are not letting you take part is because you are on mat leave then that would be discriminatory.
Is it because there is insufficient SMP to enable an authorised deduction of £1,000? If so, I'd suggest you let them know that you wish to participate and that you will be sending in a cheque. It's a common myth that employers cannot deduct from SMP. HMRC guidance explains that where an employee gives written permission for deductions to be made e.g for a car loan etc than the deduction may be made, alternatively the employee may send in a cheque to cover the amount.
I cannot see any reason why your employer should give the shares for free. They are completely separate to your CCVs as your CCVs are existing non-cash benefit (i.e. you had them before you went on mat leave) obtained using salary exchange as a flex benefit.
These shares appear to be a voluntary benefit in which case you should be able to participate but meet the cost yourself if there is insufficient SMP to purchase them with.
I've not been given a reason just "If it is only SMP then they cannot participate".
If they'd said I could contribute up to the level of SMP in December or send a cheque then I'd understand, but I've just got a flat no.
Have you got the HMRC guidance? You could forward them that and ask them to point out where it says employees on SMP can/must be excluded?
The only mention of SMP I can find anywhere as being relevant is about how the scheme make affect entitlement to SMP in terms of earning enough actual salary to qualify. There don't seem to be any issues about not being able to contribute if you're on SMP as far as I can see.
Or you could phone the HMRC helpline for the official line on how SMP and SIPs interact.
If they are excluding you on SMP grounds then as it will only apply to women it is discriminatory. Have you offered to pay by cheque? I'd try positive action first before introducing the discrimination angle. Your employer may be blissfully unaware - let's give them the benefit of the doubt!
I've now had a response to say that I can use SMP to join the SIP (after they went away to "double check" when I asked why I couldn't!)
I'm now going to see if I can top up to the maximum amount I'd normally be able to do (£1,000) using my November SMP.
Hmm, its amazing how some places will abruptly change their minds after 'double checking' i.e. actually going to check the rules and finding out that what they said to you first is a) wrong and b)opening the door to a potential discrimination case as you are being deprived of the conditions of service and any benefits you would normally receive if you were not on mat leave. Naughty.
But I'm glad it's all sorted now.
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