MNHQ here: Another FREE legal advice clinic from Maternity Action about pregnancy, maternity or parental issues at work

[AnnaCMumsnet]

Hello

Mumsnet and Maternity Action are teaming up once again to provide an online legal clinic, offering free advice on pregnancy, maternity and parental rights at work from volunteer employment solicitors and barristers who are members of the Employment Law Association.

Maternity Action reports huge demand for its advice line, especially topics such as redundancy during maternity leave, return to work and maternity pay, and on Mumsnet's Talk forums, the topic of employment rights is a hardy perennial.

The clinic will respond to this demand in a hopefully innovative way, providing free, accurate, public advice online and raising awareness of parents' rights at work. It will also enable Maternity Action and Mumsnet to identify trends and produce permanent content to address areas in which employers and workers could benefit from clear, upfront guidance.

The clinic will take the form of a 'Q&A' session on this thread, where you can post your questions on pregnancy, maternity and parental rights at work and benefits on a dedicated public discussion thread.

Specialist solicitors and barristers will take necessary additional detail via private messaging before posting up answers and advice.

The clinic will run for a week from Monday 16th to Friday 20th November (but you can post your questions from now) and will be held on a quarterly basis. We will do our best to provide all answers during the week but, at the latest, by the Tuesday of the following week. You can find information on where to go for more help once the clinic has ended here.

What to do if you’d like to post a question
If you have a question about your rights at work during pregnancy, maternity or parental leave please post it online here in the week of the clinic. Please give as much information as possible but remember that this is an online forum and can be viewed by the public – including your colleagues and employer. Please don’t name your employer publicly if you are likely to be taking action against them in future. You can use the private message facility to disclose any information you would prefer to keep off the public forums.

Please send your name and the name of your employer by private message to MaternityActionfreeadvice so that it can be passed on to the volunteers to do a conflict of interest check. We cannot post a reply until you have sent this information by private message.

Once your advice has been posted online, you will have an opportunity to provide feedback. This helps us to find out whether you found the advice helpful, whether it helped you to resolve your situation at work and some information about you. All survey responses are anonymous and confidential. Providing feedback will help us to see what improvements can be made in developing this type of online free legal advice clinic. You can fill out the survey here.

Ts and Cs – please read

The advice provided to an individual poster is based only on the information provided by that poster. Advice on this thread is also particular to the individual who has asked for it and is likely to be specific to that person’s situation. A poster may have provided further relevant information by private message which will not appear on this thread. So please take care if you choose to apply that advice to your own situation - it is recommended that you first take legal advice from one of the sources we have suggested here
Mumsnet, Maternity Action and Maternity Action's volunteers accept no liability for any loss suffered as a result of an individual choosing to follow advice provided to another poster's question on the thread.
The lawyers, all of whom are specialists in employment law, will be working as volunteers for Maternity Action in respect of the clinic. Any personal information collected as a result of the clinic will be held by Maternity Action and will be deleted after 18 months. If you wish to make a complaint about the service you received, you can use Maternity Action’s complaints policy here.

Thank you

[OwletteGecko]

Thank you for this. I was due back from work in June from mat leave but my boss asked me to extend my leave. I didn't want to as it was on SMP and I needed my wages and I had a childminder sorted who needed paying. My boss made things really difficult and wouldnt tell me what was going on then at the last minute they agreed to furlough me. I keep contacting him but he won't let me know what's going on. He avoids calls or says he's waiting to hear from his boss. Its a small company so there's no proper HR company so there's no one else to talk to. I feel fobbed off. I've heard rumours of redundancies from my friends at work and I'm worried I'm going to be top of the list as they've done without me for so long. I want to ask my boss but can't get my friends in trouble. How do I get my boss to talk to me and what rights do I have if they want to make me redundant?

[Rhica]

Thank you so much for this clinic. My question is about pension contributions whilst on maternity leave. I would like to know if I am entitled to continue to recieve employer pension contributions and who is responsible for employee contributions

I recieve an enhanced maternity package of full pay for the first 26 weeks and half pay for the next 13 weeks. Than nothing

My usual pension arrangement are my employer pays 14% of salary and I pay 7% of salary each month. This comes out of my gross salary so I assume would be classed a salary sacrifice scheme. My pension is a defined contribution scheme

I have been in touch with the pensions advisory service who sent me a spotlight_maternity leaflet. It says the following

"If your pension contributions are deducted under a salary sacrifice arrangement, then these are
treated as employer contributions. So, during periods of maternity leave, your employer should
continue to pay the entire contribution.
Your employer may have to stop your participation in a salary sacrifice arrangement during your
maternity leave to comply with its duty to pay you at least the National Minimum Wage"

I interpret this to mean my employer should be paying the full 21% (both employer and employee contributions) for the whole 9 months. Is this correct? Or would it be 12 months if I take a year off? I have queried with the pension advisory service and while I am grateful for their help I have been conflicting advice on both occasions.

Many thanks for your help and for any advice you may have

[firsttrimester]

Thank you for this clinic!
I'm in my first trimester and struggling a lot with my pregnancy symptoms. I'm working from home currently but would usually be asked to pop in for occasional non-essential meetings. It wouldn't work if everyone said no, but they can definitely spare me for these. So my first question is, could I ask to avoid these meetings through pregnancy due to covid? Can I ask to just stay home throughout? Currently they haven't pushed when I've said I'm worried but I'm wondering if it's reasonable to ask for this long-term (all through pregnancy if needed). What are my rights currently? I feel they change so often with covid. I have no medical conditions.

Also they are currently giving me less work to make life a little easier. I think this is fair as I can't work 100% and the other option would inevitability be to call in sick. Is this a reasonable agreement? I'm keen to stay in work but cannot work to normal capacity currently. This is to be reviewed soon. Is it reasonable to ask for this to continue whilst I feel so unwell? What are my rights if they say I have to do more work? Would I just need to then call in sick if I can't manage it?

Thank you

[exhausted305820]

Thank you for this thread. I'm currently on maternity leave until next month.My company have been doing voluntary redundancies hoping enough people will go so they do not have to make compulsory ones. The issue is my department has been hit the hardest by Covid. They have actually more or less shut down my department and are trying to relocate us into other jobs where possible. My manager said they were hoping more people from my department would have took voluntary. There are other jobs within the company are very similar which I think they may be try to slot us into.
I have told my manager I am happy to be placed in another job even if it's not the same role. However what are my rights regarding that? If the job is higher paid/quite different do they have to interview me for the role/advertise it first?
The issue with the job roles similar to mine is they are all full time and I am part time. My manager said I can't have my hours increased and I don't want them to be increased as it wouldn't make sense anyway for child care cost reasons.
Also how long does my maternity rights last after I return? I have heard it is 6 months but just wanted to make sure.
Thank you

[MaternityActionfreeadvice]

Hi everyone,

Thanks to those who have already posted and sent through their details via PM. For those who wish to post, please PM us with your full name and the name of your employer so that our volunteers can check for conflict before answering your query.

Many thanks,

Maternity Action

[MaternityActionfreeadvice]

I have PM'd those who have not yet sent through their details but have posted on the clinic. Could you please check your inbox if you have already posted on the clinic.

Many thanks.

[Apricotta]

What's the law with pregnant teachers working past 28 weeks please? Has it changed due to the current lockdown?

[HermioneWeasley]

Just wanted to thank Maternity Action for being women centred in their approach and language

[MaternityActionfreeadvice]

@firsttrimester

Thank you for this clinic!
I'm in my first trimester and struggling a lot with my pregnancy symptoms. I'm working from home currently but would usually be asked to pop in for occasional non-essential meetings. It wouldn't work if everyone said no, but they can definitely spare me for these. So my first question is, could I ask to avoid these meetings through pregnancy due to covid? Can I ask to just stay home throughout? Currently they haven't pushed when I've said I'm worried but I'm wondering if it's reasonable to ask for this long-term (all through pregnancy if needed). What are my rights currently? I feel they change so often with covid. I have no medical conditions.

Also they are currently giving me less work to make life a little easier. I think this is fair as I can't work 100% and the other option would inevitability be to call in sick. Is this a reasonable agreement? I'm keen to stay in work but cannot work to normal capacity currently. This is to be reviewed soon. Is it reasonable to ask for this to continue whilst I feel so unwell? What are my rights if they say I have to do more work? Would I just need to then call in sick if I can't manage it?

Thank you

Dear firsttrimester

Thank you for your question.

During the current lockdown in England, the government’s advice is that, in England, you should work from home unless you cannot do so. Therefore, on the assumption you work in England, you should not be required to go into work before 2 December 2020 for meetings unless it is necessary, which, from what you have said, it doesn’t sound to be. As you say, the government advice does change so you will have to check the government website for the latest information once England is released from lock down – www.gov.uk/coronavirus

However, in general terms, every employer is under a duty to make a suitable and sufficient assessment of any health and safety risks to which its employees are exposed while at work. In addition, all employers have a duty to protect the health and safety of new and expectant mothers in the workplace. In summary, the law requires employers:

· To assess the workplace risks posed to new or expectant mothers or their babies.

· To alter the employee's working conditions or hours of work to avoid any significant risk (regulation 16(2), Management of Health and Safety at Work Regulations 1999 (MHSW Regulations)).

· Where it is not reasonable to alter working conditions or hours, or this would not avoid the risk, to offer suitable alternative work on terms that are not "substantially less favourable" (regulation 16(3), MHSW Regulations and section 67, Employment Rights Act 1996 (ERA 1996)).

· Where suitable alternative work is not available, or the employee reasonably refuses it, to suspend the employee on full pay (regulation 16(3), MHSW Regulations and section 67, ERA 1996).

If there are risks and your employer has failed to undertake a required risk assessment or to act on its findings may be an act of pregnancy discrimination for which you could potentially bring an employment tribunal claim.

This means that your employer must undertake a risk assessment in relation to your working from your place of work during the COVID-19 pandemic. This assesses, amongst other things, the risk of your job and whether social distancing is possible at your workplace. It should also take into account other factors which could increase your risk of COVID-19 such as your race, age, build and other conditions you may have. The risk assessment is used to identify any steps your employer needs to take, such as providing you with additional personal protective equipment, ensuring social distancing measures are in place, or reducing or changing working hours.

Your employer is under an obligation to do all that is reasonable to remove or prevent exposure to any significant risk that has been found as a result of the risk assessment, and must give information to you about the risk and what action has been taken. Unless the risk can be avoided through other action, the employer should temporarily alter your working conditions or hours of work, if this is reasonable and would avoid the risk. It sounds like your employer may have already carried out such an assessment and as a result agreed that you are not required to come into work for meetings and reduced your workload temporarily. However, if they have not carried out an assessment, you could make sure they do so and raise your wellbeing concerns as part of this.

Whilst I do not know what your job entails, if it is possible for you to work from home then, in light of the possible risks of COVID-19 to pregnant women, I consider that a reasonable outcome of a risk assessment would be that you continue to work from home for at least the foreseeable future whilst COVID-19 is still a risk. Therefore, I think such a request would be reasonable.

Similarly, whilst you are feeling unwell and unable to work to full capacity due to your pregnancy, I think it is reasonable to request that you continue on reduced workload until you feeling well and able to take on more work again. However, if your employer were to refuse this and you were unable to work due to pregnancy-related sickness, you could be signed off by your GP and go on sick leave on your employer’s usual rate of sickness pay. If you were treated unfavourably because of a pregnancy-related illness, this would constitute unlawful pregnancy and maternity discrimination for which you could bring an employment tribunal claim. However, your employer has been reasonable thus far, so I would suggest that you simply ask to continue with the current arrangements for a further period until you are well enough to take on more work.

[firsttrimester]

@MaternityActionfreeadvice thank you so much for your detailed response. My employer has been so kind and reasonable so far, I just wanted to make sure I was being reasonable also. This has provided me with reassurance. Thanks again!

[itssoooofluffy]

Thank you for this thread.

My employer decides on promotions once per year.

I plan to take 6 months maternity leave next year, and will return to work a month before the board that decides on promotions is held.

I have been informed that as I will not be as senior as I would have been had I not taken maternity leave, I will not be considered for promotion anymore next year.

I will then need to wait for the following year.

So my chance at promoting is being delayed for a full year because of my 6 months maternity leave.

I've questioned this but have been told I am not being considered because I won't be senior enough, and that the reason behind not being senior enough (my maternity leave) is essentially irrelevant.

Is this legal?

[crayonsandlambs]

Thank you for this clinic!

I am about to start a new job. My contract is only for 12 months.

At the end of 12 months, 1 of 3 things will happen. Either:
A) they will let me go because my contract is over.
B) they will renew my contract for another 12 months (at the same job position).
C) they will offer me a promotion (i.e. new job in the same organisation) and a new 12 month contract.
D) they will offer me the promotion and a new contract with no end date (i.e. a permanent position in the organisation).

My husband and I would like to have a child. Hypothetically, let's say I get pregnant 8 months into my contract. I have questions about maternity leave.

1. In scenario A, does that mean I would get not be eligible for maternity leave, because I would be out of a job by the time I deliver?
   
2. Would I be eligible for maternity leave in scenario B, C, or D? If so, in which scenarios would I be eligible for maternity leave?
   

Thanks!

[MaternityActionfreeadvice]

@exhausted305820

Thank you for this thread. I'm currently on maternity leave until next month.My company have been doing voluntary redundancies hoping enough people will go so they do not have to make compulsory ones. The issue is my department has been hit the hardest by Covid. They have actually more or less shut down my department and are trying to relocate us into other jobs where possible. My manager said they were hoping more people from my department would have took voluntary. There are other jobs within the company are very similar which I think they may be try to slot us into.
I have told my manager I am happy to be placed in another job even if it's not the same role. However what are my rights regarding that? If the job is higher paid/quite different do they have to interview me for the role/advertise it first?
The issue with the job roles similar to mine is they are all full time and I am part time. My manager said I can't have my hours increased and I don't want them to be increased as it wouldn't make sense anyway for child care cost reasons.
Also how long does my maternity rights last after I return? I have heard it is 6 months but just wanted to make sure.
Thank you

Hi exhausted305820,

I’m sorry to hear that you have been affected by redundancy. You, along with other individuals on maternity leave (and some other types of family leave) have certain protection in a redundancy situation. You are not protected from selection and can still be made redundant, however, you may have a right of first refusal for alternative roles that you mention, which I will talk about below.

What are my rights regarding alternative roles?

If you are absent on maternity leave at the time of redundancy, you will have a right of first refusal for any “suitable alternative vacancy” if such a role is available, even if you are not the employer’s first choice. The role must be a “suitable alternative vacancy” for this protection to apply. However, an important point to note is that, the protection regarding suitable alternative vacancies comes to an end when you return to work after maternity leave. The government consulted in early 2019 on whether to extend this protection under regulation 10 to cover the period from when the women first informs her employer of her pregnancy to six months after her return to work, and has committed to introducing this reform, however, the law has not currently been changed.

To be classed as a “suitable alternative vacancy”, the work involved in the new role must be suitable, appropriate and the location and other terms and conditions not substantially less favourable than in your current job. Looking at the factors you have mentioned:

Different role – If an alternative vacancy is notably different to your current job in terms of the skills and experience required, then it is not likely to be considered a suitable vacancy, and while you can apply, you would not have the right to be offered it automatically at all, or ahead of others. However, if it is only different in terms of, for example, the job title but the skills and experience required are substantially the same as those you have demonstrated through your current role, then this is arguably a “suitable alternative vacancy” and you would have a right of first refusal provided this happens during your maternity leave.

Higher pay – Where an alternative vacancy has a higher pay, this should not, by itself, determine whether it is suitable or not. However, if the higher pay reflects a higher level of skill and experience required for the role which you do not have, then the role may be different enough to be equally open to you and the other members of staff at risk of redundancy to apply for.

It may therefore be in your interest to be able to show that the relevant roles that you are interested in should each legally be classed as a “suitable alternative vacancy” i.e. by demonstrating that you have the necessary skills and experience and that the terms are not substantially less favourable. Depending on what stage in the redundancy process your employer is at, they might already have classed certain roles as “suitable alternative vacancies” and perhaps just wanted to ascertain your interest in the roles in the first instance before offering any to you as a priority. It might be worth you raising this with your employer, explaining that you understand the relevant roles are “suitable alternative vacancies” and checking that these are therefore going to be offered to you, whilst being prepared to explain your reasoning.

If the case is as I suspect, and the redundancy will not be effective until you have returned to work, then there is no special treatment, however, you cannot be discriminated against because of your maternity leave. Your employer should not penalise you for being off, or mark you down in interviews for not having up-to-date examples etc.

Do I have to interview for the roles?

If the role is classed as a “suitable alternative vacancy” and the redundancy takes place while you are on maternity leave, then you are not required to go through an application or interview process where the other members of staff are not protected and you have the right of first refusal. However, once you return to work, and your right of first refusal expires, you may need to apply in the usual way.

In terms of attending an interview, legally there is no concrete answer on asking you back in during maternity leave for this purpose. In practice, if an interview process is required, your employer would have to give you sufficient notice and should ask you to use a Keeping In Touch (KIT) day and pay you for it (assuming the other candidates are attending on work time). If you have used up your 10 KIT days, then that could cause a problem because technically working on an 11th day would automatically terminate your maternity leave. You should also explain that you will be disadvantaged as a result of your maternity leave and no longer being in “work mode”. Ideally the employer would then factor that in, and certainly if they don’t you could argue that they discriminated against you on grounds of sex/maternity leave. If you are breastfeeding you may need to flag that too in case it impacts on you attending interview. It would be discriminatory if they took into account the fact that you are still on maternity leave as a reason not to offer you the role.

While I have flagged some discrimination concerns, I suggest raising these issues positively and working with your employer. You are keen to be offered a new job and so want to encourage your employer to offer you it either automatically or after interview. If they are not amenable to these suggestions you can then consider whether it is necessary to be more forceful about the discrimination angle. You can appeal against their decisions and raise a grievance (formally or informally) or pursue your rights in the tribunal. A word on timescales though: if your employment does end by reason of redundancy, you have 3 months (less one day) from the termination date to start a tribunal claim process via ACAS.

We hope that this has helped.

[CrochetNut]

Thank you for this clinic!

I am currently on maternity leave from my full time job. Due to length of service, I am entitled to 27 days annual leave per year, plus 8 days bank holiday. The office is physically closed on a bank holiday, so no opportunity to work.

I expected to be entitled to 35 days leave for the period of my maternity (27 days annual leave, plus 8 bank holidays). My company has advised as the legal minimum holiday allowance is 28 days, I will only be entitled to one bank holiday.

HOWEVER, someone that has recently started at the company and has a holiday entitlement of 23 days plus 8 bank holidays is entitled to 5 bank holidays to take them to the legal minimum of 28 days leave.

I cannot for the life of me see that this is fair, and I appear to be missing out of 7 days of leave, which is a large amount!

Would love to hear your opinions.

Many thanks 😊

[LittleRa]

@Apricotta

What's the law with pregnant teachers working past 28 weeks please? Has it changed due to the current lockdown?

I’m also interested in this.

[Linushka]

Dear team,

thank you for helpings us, mums :)

My questions is as follows:

While on maternity my company has changed owner and my employer has fired me - they opened a new position (lower paid) and employed my colleague - without any internal or external advert - they just gave her the job. Is that a correct way? Could I challenge it?

Please advise. Thank you :)

[MaternityActionfreeadvice]

@Apricotta

What's the law with pregnant teachers working past 28 weeks please? Has it changed due to the current lockdown?

Dear Apricotta,

Thank you for your enquiry.

Advice and guidance from the Government classes those who are pregnant in the list of people who are vulnerable, meaning that they are at higher risk of severe illness from COVID-19.

Your employer should, as required by law, produce an individual risk assessment for you if you are pregnant or a new mother, including clear plans which demonstrate that there will be compliance at all times with the measures identified to manage the risk.

This may include, but is not limited to:

adjusting your working conditions or hours of work, such as:
letting you sit down if your job involves standing;
adjusting your workload (e.g. not attending after-school meetings);
flexible working so you can stagger your working day if you suffer from morning sickness;
providing you with a convenient and suitable place to rest and lie down if you are pregnant or breastfeeding that allows social distancing to be adhered to, as per the Workplace Regulations;
providing you with reasonable agreed breaks that may be in addition to those already in the school timetable;
providing facilities for you, such as a private, healthy and safe environment for breastfeeding teachers to express and store milk;
allocating you to your own office;
allocating you the safest alternative role with the greatest likelihood of adherence to social distancing;
addressing issues to do with stress, including postnatal depression, as well as those to do with mental health and wellbeing, particularly those associated with remote learning/working from home;
addressing issues to do with personal protective equipment (PPE);
addressing issues to do with the use of public transport;
providing suitable alternative work on the same terms and conditions; and
suspending you on full pay (if there is no suitable alternative work).
Whilst advice from the Department for Education (DfE) on the full opening of schools from September 2020 advises that those staff in the most at risk categories, such as pregnant teachers who are clinically vulnerable, can return to the workplace, it still places an expectation on employers to conduct a risk assessment for pregnant women in line with the Management of Health and Safety at Work Regulations 1999 (MHSW).

Assuming there is no underlying condition which places you more at risk (i.e. the only risk factor is pregnancy) then there is no specific rule stating that you must work from home, although current Government guidance on social distancing says:

1. Going to work

To help contain the virus, everyone who can work effectively from home should do so. Where people cannot do so - including, but not limited to, people who work in critical national infrastructure, construction, or manufacturing - they should continue to travel to their workplace. This is essential to keeping the country operating and supporting sectors and employers.

Public sector employees working in essential services, including childcare or education, should continue to go into work.

www.gov.uk/guidance/new-national-restrictions-from-5-november

However, your employer must carry out a risk assessment as set out above, or review your risk assessment when you reach 28 weeks, and take into account the latest guidance. It may be helpful to speak to your midwife or GP about risks from 28 weeks as they may be able to provide you with further medical evidence. Your employer must also take into account the latest clinical guidance from RCOG which states that there is increased risk in the last trimester which says:

www.rcog.org.uk/en/guidelines-research-services/guidelines/coronavirus-pregnancy/covid-19-virus-infection-and-pregnancy/

If you are in a union I suggest seeking your union's support.

I hope this helps.

[MaternityActionfreeadvice]

@OwletteGecko

Thank you for this. I was due back from work in June from mat leave but my boss asked me to extend my leave. I didn't want to as it was on SMP and I needed my wages and I had a childminder sorted who needed paying. My boss made things really difficult and wouldnt tell me what was going on then at the last minute they agreed to furlough me. I keep contacting him but he won't let me know what's going on. He avoids calls or says he's waiting to hear from his boss. Its a small company so there's no proper HR company so there's no one else to talk to. I feel fobbed off. I've heard rumours of redundancies from my friends at work and I'm worried I'm going to be top of the list as they've done without me for so long. I want to ask my boss but can't get my friends in trouble. How do I get my boss to talk to me and what rights do I have if they want to make me redundant?

Dear OwletteGecko,

Thank you for getting in touch and congratulations on your new baby.

I’m sorry for the difficult time you are experiencing. I can understand how this situation will be completely frustrating for you.

It’s possible that in these uncertain times that your boss doesn’t yet know what the plan is or how things will work out; so it’s possible he is being genuine with you when he says he is waiting to hear from his boss.

All contracts of employment have an implied term of mutual trust and confidence – meaning that your boss should be conducting himself in a way that maintains your trust and confidence.

Your employer had no right to either force you to extend your maternity leave or to force you on Furlough. You can only be placed on Furlough Leave with your agreement.

If redundancies are being considered, unlawful discrimination might occur if consultation (or adequate consultation), doesn’t occur because you are on maternity leave.

It would also be unlawful discrimination to take account of your pregnancy and/or maternity leave in deciding whether or not to make you redundant.

I would suggest that you keep talking to your boss and try to get answers. You can explain to him how difficult this situation is for you when you’ve heard rumours about redundancy but you haven’t had any information from them directly. We would always recommend that you try to keep communication positive and constructive; as this is usually the best way to preserve an ongoing good working relationship. However, if you feel that your concerns are going unanswered, you do have the right to raise a formal grievance. Your employer will have a duty to arrange a meeting, allow you to be accompanied by a work colleague or trade union representative and give you an outcome as well as allowing you the right to appeal.

If your role is made redundant and you think that there might be issues of unfairness and/or discrimination, you should seek further advice promptly. There is a strict 3 month less 1 day time limit for making claims to an Employment Tribunal and you are required to go through Acas Early Conciliation first.

[MaternityActionfreeadvice]

@Rhica

Thank you so much for this clinic. My question is about pension contributions whilst on maternity leave. I would like to know if I am entitled to continue to recieve employer pension contributions and who is responsible for employee contributions

I recieve an enhanced maternity package of full pay for the first 26 weeks and half pay for the next 13 weeks. Than nothing

My usual pension arrangement are my employer pays 14% of salary and I pay 7% of salary each month. This comes out of my gross salary so I assume would be classed a salary sacrifice scheme. My pension is a defined contribution scheme

I have been in touch with the pensions advisory service who sent me a spotlight_maternity leaflet. It says the following

"If your pension contributions are deducted under a salary sacrifice arrangement, then these are
treated as employer contributions. So, during periods of maternity leave, your employer should
continue to pay the entire contribution.
Your employer may have to stop your participation in a salary sacrifice arrangement during your
maternity leave to comply with its duty to pay you at least the National Minimum Wage"

I interpret this to mean my employer should be paying the full 21% (both employer and employee contributions) for the whole 9 months. Is this correct? Or would it be 12 months if I take a year off? I have queried with the pension advisory service and while I am grateful for their help I have been conflicting advice on both occasions.

Many thanks for your help and for any advice you may have

Dear Rhica,

Thank you for your query.

Pensions contributions during maternity leave is a bit of a tricky area.

I note that you are in a defined contribution scheme and make your pension contributions out of your gross pay. It is possible that you are part of a pensions salary sacrifice scheme although this would normally have been agreed with you. If you are not sure, you will need to confirm this with your employer as this is relevant to what happens with pensions contributions.

There are also two things worth checking to help you with this query:

Your contract of employment. This will set out details of your entitlement with regards pensions contributions, and may provide details of what happens during maternity leave (it may not contain this level of detail - many contracts do not)
Your employer’s policies and procedures. Many employers will have a maternity policy or similar guidance document covering pay and benefits during maternity leave. It would be worth checking this in the first instance as this may cover what contributions your employer will make during your maternity leave.

Legal position

Employment law imposes a “maternity equality rule” in respect of work pension schemes. This requires membership of the scheme, pension accrual, and any benefits such as death in service benefits to be continued during:

Ordinary maternity leave (known as OML – the first 6 months of maternity leave). This is the case whether the leave is paid or unpaid
Additional maternity leave (known as AML – the second 6 months of maternity leave). This would only apply if you are being paid by your employer (which I note you will be for 13 weeks but not the last 13 weeks which is usually unpaid maternity leave)


Pensions contributions generally

The law requires that, while the employee is receiving maternity pay, she only needs to contribute to the scheme on the basis of the pay she actually receives. The employer must continue to make its contributions on the basis of the pay that she would have received if she had been working normally.


Pension contributions via salary sacrifice

Normally a salary sacrifice arrangement works by reducing your salary in return for a non-cash benefit. However, you cannot be asked to sacrifice any of your SMP as this is a minimum statutory amount (6 weeks @ 90% of your average earnings and 33 weeks at £151.20pw). I would also flag that – as the Pensions Advisory Service have advised – your employer may have to stop your participation in a salary sacrifice arrangement during your maternity leave if making the deductions from your gross pay would mean that your pay dips below the National Minimum Wage.

In terms of what happens to salary sacrifice benefits during maternity leave, this is a bit of a grey area and there are conflicting views.

It used to be accepted that all benefits provided as a result of a salary sacrifice must be continued during maternity leave even where there is no salary provided (or where only SMP is provided). This is because a salary sacrifice arrangement is a contractual change and the employer is therefore required to continue to contribute the full 21% as if you were in receipt of full pay throughout your maternity leave

This has been called into question by a court decision which was considering whether childcare vouchers provided under a salary sacrifice scheme should continue to be provided during maternity leave. In that case, it was decided that childcare vouchers provided under a salary sacrifice scheme are part of the employee's "remuneration" and therefore do not have to be provided during maternity leave. There is an argument that this reasoning could also be applied to pensions contributions provided via salary sacrifice arrangements.

However, as noted above, an employee’s pension rights during maternity leave are governed primarily by the ‘maternity equality rule’; this requires accrual of pension rights to continue during periods of OML and paid AML. In other words, employer pension contributions must continue in full during your paid leave as if you are at work.

Different employers take different approaches. It would be worth discussing this with your employer’s HR or pensions team to understand their approach and check your contract and employer's policies. If you are in a salary sacrifice scheme and wanted to challenge a refusal to pay full contributions throughout your maternity leave you would need further specialist advice as the law is unclear.

If you are not in a salary sacrifice scheme you are entitled to your employer's full pension contributions during your paid leave, as if you were at work, but your contributions will be based on your maternity pay during this period.

I hope that helps.

[MaternityActionfreeadvice]

@itssoooofluffy

Thank you for this thread.

My employer decides on promotions once per year.

I plan to take 6 months maternity leave next year, and will return to work a month before the board that decides on promotions is held.

I have been informed that as I will not be as senior as I would have been had I not taken maternity leave, I will not be considered for promotion anymore next year.

I will then need to wait for the following year.

So my chance at promoting is being delayed for a full year because of my 6 months maternity leave.

I've questioned this but have been told I am not being considered because I won't be senior enough, and that the reason behind not being senior enough (my maternity leave) is essentially irrelevant.

Is this legal?

Dear itssoooofluffy,

Thanks for your query.

It is unlawful for an employer to refuse to put an women forward for promotion because she is pregnant or on maternity leave. This may be maternity discrimination.

The “because” part is the really important part for your purposes. If your employer is not putting you forward for promotion because of a negative association with you taking maternity leave then their actions will be unlawful. If, however, you are not being put forward for promotion because you will not have satisfied the promotion criteria, then this is not maternity discrimination.

It comes down to what “senior” means in practice. If, for instance, promotion to the next level requires [x] years on the job experience then it is not unlawful to delay your promotion until you have this. If on the other hand the criteria is more fluid, and you will have equivalent experience to others being promoted at that time (despite having some time out) then the reason you are not being promoted sounds more like it is because of your maternity leave (and you could have good grounds for challenging this).

One other point to consider is that even if promotion requires a certain number of years of experience, you may still be able to challenge this by saying that tying promotions so precisely to length of time in the role puts women at a disadvantage compared to men (because women are more likely to have time out having children than men). If this is the case, your employer would have to objectively justify their promotion criteria. This is unfortunately not straightforward and requires quite a detailed assessment of the facts, but could be something to explore if you want to take things further.

In practice, I would suggest that you look to have a conversation internally (with your line manager of HR contact) to understand the promotion criteria in more detail. What does it really mean to say that you won’t be senior enough – i.e. is that time spent at a particular level or is it about demonstrating that you have acquired certain skills or experience. Getting that clarity should help you to decide on next steps, and in any event ensure that if you do not meet the threshold for the next round, you will do the year after.

If you do decide that you want to take things further, you may find the following information sheets helpful:

maternityaction.org.uk/advice/dealing-with-problems-at-work/

maternityaction.org.uk/advice/discrimination-during-maternity-leave-and-on-return-to-work/#returning-to-work


I hope this helps, and wish you luck for the future.

[AnnaCMumsnet]

Hello

We are closing this thread to new questions now, but Maternity Action will aim to answer the outstanding ones next week.

Thank you so much to everyone who's posted questions this week. And a very big thank you to Maternity Action and their very helpful volunteers.

Anyone who needs advice can always contact Maternity Action directly.

Thanks
MNHQ

[MaternityActionfreeadvice]

@crayonsandlambs

Thank you for this clinic!

I am about to start a new job. My contract is only for 12 months.

At the end of 12 months, 1 of 3 things will happen. Either:
A) they will let me go because my contract is over.
B) they will renew my contract for another 12 months (at the same job position).
C) they will offer me a promotion (i.e. new job in the same organisation) and a new 12 month contract.
D) they will offer me the promotion and a new contract with no end date (i.e. a permanent position in the organisation).

My husband and I would like to have a child. Hypothetically, let's say I get pregnant 8 months into my contract. I have questions about maternity leave.

1. In scenario A, does that mean I would get not be eligible for maternity leave, because I would be out of a job by the time I deliver?
2. Would I be eligible for maternity leave in scenario B, C, or D? If so, in which scenarios would I be eligible for maternity leave?

Thanks!

Dear crayonsandlambs

Thank you for your query.

All employees who give birth and comply with the requisite notification conditions are entitled to one year's statutory maternity leave (made up of ordinary maternity leave and additional maternity leave), regardless of length of service. This right is for employees only, whether they are full time or part-time, fixed-term or permanent, but is not available to the self-employed or workers.

In scenario A, as you would not be employed at the time you give birth, you would not be eligible and in any event would have no employment to take leave from, but in the scenario B,C,and D you would be entitled to take maternity leave with the right to return to the same job afterwards.

The position in relation to maternity pay is slightly different in that once you qualify for statutory maternity pay (SMP) you are still entitled to it even if your job ends just before or during your maternity pay period. The qualifying conditions for SMP are as follows:

· You are continuously employed for at least 26 weeks by the end of the Qualifying Week, which is the 15th week before the expected week of childbirth (EWC). This means you need to have started your job before you fall pregnant.

· Your normal weekly earnings are not less than the lower earnings limit for national insurance purposes (currently £120 per week) in approximately weeks 18 to 26 of your pregnancy;

· You are still pregnant 11 weeks before the start of the EWC (or have already given birth);

· You give your employer at least 28 days' notice (or, if that is not reasonably practicable, as much notice as is reasonably practicable) of the date you intend the SMP to start; and

· You supply a certificate (usually a MAT B1) from a midwife or doctor, confirming the date of your EWC.

Therefore, in relation to all the scenarios you refer to, if your contract came to an end after the Qualifying Week (the 15th week before the EWC), you would still be entitled to your full SMP entitlement from your former employer.

You can find more information about maternity pay on the Maternity Action website here: maternityaction.org.uk/advice/maternity-pay-questions/

Your employer may also provide occupational maternity pay (on top of SMP) and you should check their maternity policy or your contract for full details, however, if your contract ends you will no longer be entitled to any contractual benefits but may still get SMP as stated above.

I hope that helps.

[MaternityActionfreeadvice]

@CrochetNut

Thank you for this clinic!

I am currently on maternity leave from my full time job. Due to length of service, I am entitled to 27 days annual leave per year, plus 8 days bank holiday. The office is physically closed on a bank holiday, so no opportunity to work.

I expected to be entitled to 35 days leave for the period of my maternity (27 days annual leave, plus 8 bank holidays). My company has advised as the legal minimum holiday allowance is 28 days, I will only be entitled to one bank holiday.

HOWEVER, someone that has recently started at the company and has a holiday entitlement of 23 days plus 8 bank holidays is entitled to 5 bank holidays to take them to the legal minimum of 28 days leave.

I cannot for the life of me see that this is fair, and I appear to be missing out of 7 days of leave, which is a large amount!

Would love to hear your opinions.

Many thanks 😊

Hi CrochetNut

You are absolutely right that this feels very unfair, and many employers would honour the full 35 days. Unfortunately, the law relating to bank holidays and maternity leave is not actually very clear.

An employee’s holiday entitlement is governed by law under the Working Time Regulations 1998. The Working Time Regulations 1998 gives an employee a right to 5.6 weeks’ holiday, which is 28 days, per year. This is the minimum annual holiday that you should be entitled to presuming you work full time.

Generally, when considering any additional holiday entitlement beyond the 28 days this will be set out in the contract of employment. Your contract of employment can provide for more holiday entitlement than the Working Time Regulations, but it cannot provide for less.

There is no statutory (legal) right for an employee to take public bank holidays as annual leave, in addition to the 28 days, so for many employees the legal right to 28 days' minimum holiday includes the 8 fixed bank holidays. Any right to take a bank holiday as annual leave will be governed by the specific wording in your contract of employment. It could also be impacted by policies that your employer has on holiday, and how they treat other employees in similar positions including those who are not on maternity leave but unable to take a bank holiday for some other reason (for example sickness absence).

Generally speaking the Employment Rights Act 1996 provides that a woman is entitled to all of her terms and conditions during maternity leave, except remuneration, as though she was at work. You also have a right not to be treated unfavourably because you are pregnant or on maternity leave, as this could be discrimination under the Equality Act 2010.

The difficulty with bank holidays is that they are fixed holidays and where Bank Holidays or any other fixed holiday periods fall during your maternity leave there is no right to take them at another time. However, following the European Court of Justice case of Gomez v Continental Industrias del Caucho SA, ECJ C-342/01 it was decided that a woman must be paid for the statutory minimum leave if she was unable to take the legal minimum because of fixed holidays that fell during maternity leave.

If your contractual holiday entitlement was for 35 days with none of it being fixed holiday there would be no question of you being entitled to take it before or after your maternity leave. However, it is not currently clear whether you would be able to claim maternity discrimination if your employer refused to pay for fixed holidays that fell during your maternity leave in excess of the legal minimum of 28 days. Assuming your colleague also took maternity leave and “lost” some bank holiday days, albeit not as many as you, as they were also given the statutory minimum of 28 days, the approach taken by your employer appears consistent on the face of it.

Your employer therefore can technically take this view and this is why you get the same holiday allowance whilst on maternity leave as someone who has a lower contractual number of days than you have. It is not a generous interpretation of the law and as you say, feels unfair. I suggest that if you have a good rapport with your manager, you could try to appeal to their better nature and ask for an exception to be made because of your longer leave entitlement which is presumably a recognition of long service.

The other option is to make use of your KIT days to help you back into work (see our info sheet maternityaction.org.uk/advice/keeping-in-touch-days/ ). I appreciate this isn’t the same as paid holiday, but it could allow you to have up to 10 extra days of pay.

As you can see, the legal position on bank holidays is complex, and as set out above will depend on things like the specific wording of your contract of employment, policies governing holiday within your employer, and what your employer usually does (custom and practice).

I would therefore encourage you to:

1. Review your contract of employment and any other policies in your workplace on holiday entitlement, maternity leave and sick leave;

1. Speak with HR or your manager, keeping it constructive and amicable, to see if they will review their policy;

1. If your employer does not change their position and you want to pursue it, you should seek further detailed advice from a lawyer specialising in employment and discrimination law because of the complexities of the law in this area.

I hope that this is helpful.