Hi all, Hoping for some urgent advice (been on hold to work and pensions for 40 mins so far!) I am on mat leave at the moment receiving SMP but have been doing a bit of unpaid voluntary work here and there. Anyway I received a threatening letter from my (horrible) company today saying that I will need to pay back the whole of my SMP as I worked elsewhere. Is this the case, I simply didn't realise that a bit of volunteering would have this affect! Thanks
No idea how they know but I've still received a threatening legal letter. Any normal company wouldn't be bothered - it's nothing to do with my normal job. But just need to know my legal rights now if anyone can help?
Hmm. I've had a look at the SMP technical guidance and it says the following:
"Your SMP will stop if after the baby is born, but before the end of the Maternity Pay Period, you work for an employer who did not employ you in the qualifying week. It is your responsibility to tell the employer paying you SMP about your new job. You must do this as soon as possible, and make sure you return any SMP payment you get that covers the week you started work and any part of the period after you resumed work. If you do any work in a self-employed capacity during your MPP, then such work will not affect your SMP."
You will see there is an exemption for self-employed work but not voluntary work, which seems daft.
"This isn't anything to do with the SMP guidance. This is an employer and contract issue."
What makes you think that? There's no relevant clause in the OPs contract and the employer hasn't claimed there is. They've said as she's worked elsewhere she needs to pay back her SMP, and that is the case.
The rules of SMP are not governed by the employment contract in the way the terms and conditions of enhanced maternity pay would be - an employer doesn't get to put something in their employment contract allowing them to reclaim SMP if they don't like something the employee does. They can only reclaim SMP if one of the statutory rules of SMP says so. And if an employee starts working elsewhere, SMP is repayable.
"The fact that the letter is from her employer. That is a pretty strong indication that it is the employer who has issue with it."
Of course it's the employer who has issue with it, who said otherwise? They're the ones paying the SMP, of course they have issue with doing so if the OP has done something which means they were not obliged to pay it.
If the OP wasn't entitled to it, and the employer was therefore not supposed to pay it, the element of SMP the employer has been able to recover from HMRC wasn't due to them either.
Just because the employer is the one with the issue doesn't mean it's a contractual thing.
Yes I know that. But you are still bound by the terms of your employment contract whilst on maternity leave (money aside). If that contact stipulates that OP cannot work for anyone else whilst employed by them; she could be liable to repay. However, OP says there is nothing in the contract that says that so as I advised earlier she should quote their contract back to them and show them that she CAN do this without being penalised.
But yes if there's nothing in your contract or company policies and you've not received any payment they haven't got a leg to stand on. In fact I'd respond to them with the facts ask them how they even know is be thinking grievance too based on their being heavy handed and intrusive.
Well there's no way that HMRC check what is stipulated in everyone's contract when paying SMP to the employer. They just pay it if you meet the standard eligibility criteria for SMP. Employers can make extra stipulations on any additional maternity pay they give, if any.