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Confusion re fixed term contract and maternity leave(5 Posts)
I'd be so grateful if someone who knows their employment law could help me out! I have a couple of queries - one regarding my right to return and the other regarding annual leave accrual.
I'm on a fixed term NHS contract due to end on 8th November, and am going on maternity leave on 4th June.
I've just heard from HR that I am entitled to full maternity pay/leave, and my contract will be extended from November (original end date) until June 2018 to allow me to receive this. However, they have stressed that I have no right of return, as my contract is only being extended to cover my maternity payments. By the end of my maternity leave in June 2018 I will have had 2 years service - so is it true that I have no right of return? Or will usual redundancy procedures apply?
The other issue is with my annual leave. At their request, I've taken all my annual leave that would have accrued until the original end of my in November. But if my contract is being extended for maternity leave purposes, surely I will also be accruing a/l for the duration of my maternity leave - ie until June 2018?
HR have told me I have no right to accrue a/l between November 2017 and June 2018, as my contract is being extended solely for maternity leave/pay purposes and I don't keep any other employment rights - eg annual leave. Is this correct?
Can anyone advise on whether I've been given the correct information, and if possible point me towards some authoritative source that will remove all doubt? Thank you!
I work in HR and whilst I don't know the policies in your organisation, what I would say from a statutory point of view is as follows:
Try to imagine the situation as though you weren't on maternity leave at all - if you'd worked for two years to June 2018 and there was no role for you then I'd be making you redundant, as you have more than two years service.
When your employer says they are only extending your contract because you are on mat leave... is the actual job ending before then? Because if there is a genuine redundancy situation they'd be better off making you redundant and paying up any unpaid mat pay at this time IMHO, obviously they've decided not to go for that approach.
I'd say if you are still employed between Nov 17 and June 18 you have the right to accrue leave, but I cannot really understand why they don't just make you redundant in November if the job is gone then. It's not wrong to make a woman on mat leave redundant if there's a genuine redundancy reason although you have to take care not to discriminate. As for right to return - well if there's a job to redeploy you to you could return, if not it would be a redundancy.
By making you redundant in November and paying up any unpaid mat pay at that time that would avoid any kerfuffle over whether you're entitled to redundancy pay/ annual leave. They could also discuss redeployment options with you at that time.
So without understanding why they aren't doing it that way I can't really advise any further at this stage but feel free to PM me if you like!
Oh and as for an authoritative source that will remove all doubt, no such thing in employment law I'm afraid. Otherwise, there'd be no need for tribunals! But you could always give ACAS a call.
What they may be doing is keeping you on the payroll to continue paying your SMP, even though your contract has ended. In that case, you wouldn't accrue annual leave as you wouldn't still be employed. Same for redundancy pay.
My organisations previous payroll provider said they couldn't take women off the payroll during SMP, so had to keep them on to continue paying it. Our new payroll provider would pay it in a lump sum.
There's no technical reason that a woman on mat leave must be kept off the payroll with SMP outstanding.. but some places may continue to do this, which in my opinion makes it really confusing as to whether your still employed or not. I'm not a payroll expert though so don't know why they would or wouldn't pay it up as a lump sum.
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