compromise agreements - for flowerybean and any other employment people

[ilovemydog]

flowerybean: it's a legal point that I'm making an issue about. HM Customs and Excise Legal Department have been pondering the point for ages! Grrr....

Without boring you about the details, entered into a compromise agreement with company x (after working for them for circa 12 years) in December 2007, and had DS in February 2008. thereby past the 25 week statutory requirement for maternity pay.

The query is whether or not by making me a payment of (xxx), means that company x has fulfilled their statutory obligations.

I say, 'no' on the basis that one cannot contract out of statutory obligations.

At this stage, all I want is a decision. Any decision is fine as then I can either appeal or get maternity allowance?

Any ideas for getting HM Customs to make a decision?

We are so broke at the moment

[llareggub]

Oooooh, need a bit more information I think. Do you mean you think you should be getting SMP from your former employer or MA from the state?

At which week of your pregnancy did you leave your employment? What did the compromise agreement say about maternity pay? Did they pay for you to get legal advice?

[flowerybeanbag]

ilovemydog assuming you were employed 15 weeks before your due date as specified on your MATB1 then I agree you should be getting SMP, and I agree your employer can't contract out of it's statutory obligations.

I would say if your compromise agreement specifically said you would receive SMP for the 9 months you are entitled to it totalling £xxxx but would receive it in the form of one single payment (for convenience or whatever) then you shouldn't get it. That would be assuming there is not some rule somewhere saying it must be received as you go along.

If your compromise agreement just said you will get £xxxx and didn't specifically say that it was or included your SMP then you should get it on top would be my opinion.

Massive disclaimer: I am not a lawyer. But that would be my professional opinion. If I had been advising the employer I would have taken legal/HMRC advice about whether there is anything saying you can't pay SMP up front in one lump and would have specified clearly in the agreement that the amount included SMP.

If I had been advising you, I would have said that the sum mentioned in the agreement must specifically not include any further monies due to you such as SMP. Did your solicitor not mention it when you took advice?

[ilovemydog]

Thanks flowerybean see, you do get recognition!

Exactly my point! That maternity pay was not specifically mentioned in the compromise agreement, as I was renumerated for 1) severence and 2) pay in lieu of notice.

My solicitor was dreadful and said that she could not advise me on benefits and to speak to the benefits agency?

I have submitted the claim to HM Customs (dispute unit) as they advised me to send it there. There is no question about my eligibility to claim timeframe wise.

It has gone to their legal department and has been there for the last 3 months

My case officer is very nice, but says there is nothing I can do to speed the legal department up????

I want to tear my hair out - oops, forgot, it's in the post baby falling out stage anyway!

[flowerybeanbag]

What a rubbish solicitor! Just because she is not a benefits adviser doesn't mean she can't make sure any money you are owed by your employer is specified in your compromise agreement!

What is the actual reason you are being given by your case officer for not having a decision for 3 months? Is it a backlog? I would strongly press her for a date (soon) by when you can expect a decision, and consider formally writing a complaint letter to whoever's in charge if you can't get that.

3 months is ridiculous. You are entitled to SMP. You have not been paid it. You have been paid other monies that are to do with your termination, not your maternity leave. At no point were you informed that your employer was including SMP in your termination money, you did not agree to this when signing your compromise agreement, therefore they cannot claim this in retrospect. Your employer is refusing to pay. Simple as.

[llareggub]

I agree with flowery.

I'm also pretty sure that after three months of waiting for an answer, you should move to the complaints stage. There is nothing like a formal complaint to jolt the public sector into action, trust me.

Disclaimer: I work for the public sector so rather feel that I can say this from a position of knowledge rather than stereotype!

Full details of the complaints procedure so should be on their website. You could also contact the appropriate minister if you don't get a response. Three months is unacceptable.

[ilovemydog]

flowerybean - do not even get me started on the solicitor . You make an excellent point re: not waiving right to maternity pay... Great observation!

llareggub: my hesitation in not complaining is that I am relying on discretion here, and therefore didn't want to annoy anyone, namely the person who will be making the ultimate decision!

Thanks so much for your help!

Going to call my case worker on Monday to start the complaints process.

Meanwhile, who is the appropriate Minister? HM Customs falls under Treasury?

[flowerybeanbag]

ilovemydog why are you relying on discretion? Whether your employer has to pay you SMP isn't a decision based on anyone's discretion, you shouldn't have to worry about upsetting anyone.

I think it is the treasury, yes. I'm sure you can double check with your case worker about that as well.

[ilovemydog]

flowerybean: I had the idea that since the wording of the compromise agreement stipulates that I have no further claims off company x, (statutory otherwise etc) that it will need some legal person who isn't pedantic about it. Obviously I haven't waived my rights, and one cannot contract out of statutory obligationns anyway....

But as usual, you are right

[BetsyBoop]

I agree go for the complaints procedure too (used to work in the public sector too, this usually jolts things into action )

If that fails I'd suggest roping in your MP to help - he can write a "yellow peril" (at least that's what they used to "affectionately" call them in the DSS (pre DWP)) - believe me you will have it sorted within the week then

[BetsyBoop]

One other thing just occurred to me

if your ex-employer said you are not entitled to SMP they have to issue you with an SMP1 form giving the reason - here's the form

either that or they should have confirmed within 28days (of you telling them about your maternity leave dates, handing in MATB1 etc) what rate your SMP would be & your return date (assuming this was pre leaving discussions of course)

I agree with FBB (of course - to FBB) if it wasn't specifically mentioned that pay-off payment of £xx included £yy for your full SMP entitlement then they should give it to you as it's a statutory entitlement (but I'm no lawyer either )

Also something is nagging in the back of my mind that SMP/SSP etc have to be shown separately on your payslip (is that right FBB? - I know there's a legal requirement to provide an itemised pay slip, but can't remember exactly what & don't have time to check it out just now) - so assuming you got one for your payoff payment then there is no way they could try & say now that they'd included it in the sum.

[ilovemydog]

Flowerybean and Betsy - so, took your advice and complained about length of time.

Suddenly, the legal decision arrived on my case workers desk: I am entitled to SMP due to the fact that the compromise agreement didn't include maternity pay.

So, thanks!

Quick question: When I was on maternity leave the first time, I was on full pay.

Why is it that I am only entitled to SMP now?

[flowerybeanbag]

Hi ilovemydog, glad you got the right decision.

You wouldn't be entitled to full pay - you get SMP after you've left employment if you qualify, but any occupational scheme operated by your employer that involves paying over and above would be subject to their own t&cs and wouldn't be extended to people no longer employed.

[ilovemydog]

Thanks flowerybean - hmph! Employers discretion and all that, I suppose?

Am crossing fingers (ex) employer doesn't appeal as this then adds about 6 months to the process.

It's a multi national company, and in my opinion, they will want to be compliant with the HM Customs legal opinion (hopefully!)

Oh, and case worker said it was a 'coincidence' re: decision arriving and my complaint letter.

[flowerybeanbag]

at coincidence...

It would be incredibly generous of any employer to pay their occupational maternity pay to someone who has left employment, I have to say, There is probably a clause in their maternity policy to say that anything over and above SMP can be clawed back if the person doesn't return to work after maternity for a certain length of time anyway.

I'm sure they won't appeal it, it makes minimum difference to them and isn't worth the hassle at all. You'll be fine I'm sure.

[BetsyBoop]

your employer will get 92% (I think, somthing like that) of the cost of the SMP back from HRMC from their NI payments, so it would be really petty of them to appeal & probably not worth paying a lawyer to look at it to formulate the appeal anyway, so I wouldn't worry too much.

Glad you got it sorted

[ilovemydog]

And a very big thank you to you too Betsy

The company has an in house legal department which just goes to show that it's worth questioning these things. And it's no great secret that they offered me a redundancy type package after I told them I was pregnant for the 2nd time, which is whay I was so adamant that I wanted maternity pay. They were trying to sleeze out of it.

Oh, and I do get the full 39 weeks per my man in HMRC.

But good advice as far as lodging a complaint.

[ilovemydog]

Hi - ugh. My nice man in HM Customs has spoken to the company and the only comment they have is that they didn't receive my MAT B1 form!

I did send it in at the time (presumably lost which wouldn't be the first time H/R has lost something regarding my maternity leave!)

They admit that they knew I was pregnant, so surely if there was any query re: missing MAT B1 it should have been addressed then?

So, the question is: can they object to paying me SMP if they say they never received my MAT B1 form which I insist was sent?

[flowerybeanbag]

ilovemydog what you have to do to get SMP is provide medical evidence of your due date, which normally would be your MATB1 obviously.

Not only have you done that but you have also had a child which ought to prove that you were pregnant and entitled to SMP!

If they have lost your MATB1 that's not your problem. They may still require medical proof of your due date for administrative purposes for SMP - presumably as an employer you have to have that to claim it back.

Are they actually refusing to pay it because of the lost form, or are they just whinging? They could request further medical evidence, I would probably advise them to request a letter from your GP (at their cost). It's certainly very late to suddenly decide they haven't got the form. Don't suppose you have any proof you sent it in do you....?

[ilovemydog]

Hi Flowery - my nice man at HM Customs said he wanted to get my 'side of the story.'

He is being a bit of a go between, but commented that if they are raising objections, then they would probably appeal. I suggested this would be a bit daft - challenging the fact perhaps that I wasn't pregnant which would be easy to rebut.

I think they are whinging, and are annoyed that their legal dept didn't scrutinize the compromise agreement competently (from their viewpoint.)

No evidence that I sent in the MAT B1, but last year had to implement the grievance procedure as they had lost a letter sent recorded! At first they accused me of not having sent it, but managed to get the signature of the receptionist who signed for it.

[BetsyBoop]

sounds like they might be considering non-receipt of MATB1 as reason to deny SMP

As you say, they knew you were pregnant & presumably there is some correspondence that proves this, email etc? So why did they never query it?

If they do go down this road they would then have to explain why they have never issued you an SMP1 to tell you why they can't pay SMP - one of the reasons is
"You did not give me medical evidence soon enough"

"To get SMP you must give me your MATB1 or other acceptable evidence with 3wks of the start of your MPP. If you had good reason for taking longer than this, I could only allow you up to 13wks to give me this evidence."

(I've linked to form in an earlier post)

I really don't know why they are bothering, even if you were on £100k pa, it would only cost them about £1200 to pay you it by my rough calc, as they get 92% of the cost back by deducting it from their NI payments to HRMC

[ilovemydog]

Have been going through various emails and a HR Manager did say that unless I signed the compromise agreement in 7 days, they would withdraw it, and I'd have to make my intentions known about maternity leave - so, yes, they knew I was pregnant. I even asked where to send the MAT B1 form...

I think they are clutching at straws here, and are probably a bit annoyed that HM Customs called them and said that my claim has already had legal opinion and that I am entitled to SMP.

It would be entertainment value if we weren't so hard up for cash...

[BetsyBoop]

I would ask them in writing to confirm that they will be paying your SMP ASAP or if they have reason not to, to issue the SMP1 ASAP. They HAVE to do one or the other.

You can't really do much else until you have the SMP1 (assuming they are not wanting to pay) - at least once you get the SMP1 you can decide if you have grounds for appeal & pursue that option or (if there really is a genuine reason, which from what you've said I doubt...) you can then at least claim maternity allowance from DWP (MA is £117.18pw for 39 weeks, as opposed to SMP 6wks at 90% of pay + 33wks at £117.18)

If they refuse to either pay it or issue SMP1, then set HRMC on them

[flowerybeanbag]

ilove are you still liaising with your employer at all, or is the man at HMRC doing that?

Your employer have been told they must pay you, is that right? It's just a question of whether they will appeal HMRC's decision, and whether they'll use lack of MATB1 as a reason for that?

What happens now? When will you find out whether they are appealing, and have they been given a deadline by which they must cough up by the HMRC?

[ilovemydog]

Hi Flowery

My HMRC man is doing the liasing on an informal basis. He called me yesterday after speaking with ex employer to get 'my side of the story'.

After being told that my compromise agreement has been reviewed by HMRC and the legal opinion is that I am entitled to SMP, they thought about it for 24 hours and came back with, 'we didn't receive her MAT B1...'

They may try and appeal the decision on the lack of medical evidence of pregnancy, which is a really weak argument as I sent it. They have lost documents before in regards to my maternity leave. I don't know why...

I should find out in the next few days what they are going to do. Both sides are sent statutory forms (SMP 14?) and send it back to HMRC.

The whole thing is fascinating albeit somewhat annoying.