Desperately seeking help with my maternity entitlement!

[JellytotZ]

I apologise for the long post but I have really tried to keep it short!

I am a primary teacher and currently work in a preschool at a University. I joined last June 2008 and was employed by the University temp bank for what was meant to be the summer duration until a teaching post was to be available. However, the nursery then changed management and I was informed the role would be available from December. All the while I remained employed through the 'temp bank'.

Last December (16th) I had an interview for the post I was actually already working in - I knew by clarification from my manager that I had the job and upon breaking up for the Christmas holidays on the 22nd I was aware of this.

On my return to work I awaited my contract. By the end of February I still had received nothing. During this time I was still being paid by temp bank and continued to work in the same job role despite not having seen or signed a contract. My manager chased this up with HR (human resources) and it came to light that they were awaiting confirmation from Occupational Health. I then personally phoned Occupational Health myself to query this (I had completed the relevant forms some time previous) and they had no records under my name!!! So, again I gave the necessary details over the phone. My manager then informed HR that this had been done.

By 21st of February I had discovered that I was 4/5 weeks pregnant. I was very honest about this with my manager, and even though at the time I knew my pregnancy to be very early on I went to speak to somebody in HR. I also went and spoke to someone in the temp bank who said i was not entitled to Statutory Maternity Pay and she advised that I needed to get my contract......of which I explained the situation with HR and the delay in my contract.

During March (i cannot recall precisely when) I received a contract. The start date printed on the contract is 02/03/2009. I think this is highly unfair due to the time already elapsed since the interview date.

My main concern is my entitlement to maternity pay. I understand that I need to have worked at the university for a total of 26 weeks before the 15th week before my estimated delivery date(EDD). Basically, my EDD date is the 23rd October and 15 weeks before then takes us to July 10th by which point i need to have been employed for the 26 weeks (which I should get having been working full time with no holidays since last June 2008 nearly a whole year at the nursery) However, apparently through the temp bank I am only entitled to a Maternity Allowance and if I sign the contract which I now have, the start date of March 2nd does not entitle me to maternity pay.

To make matters worse, I was informed via a telephone call from the temp bank that my employment with them was due to end as of 4th June....so for 2 weeks I have not been working but instead trying to sort this mess out!!! Temp workers can apparently only be employed for a maximum of one year.

I feel that I have been treated extremely unfairly. I am now left wondering whether I should have kept my pregnancy a secret until 5 months at least and perhaps then, I would have received my contract at an earlier time.

Not being on a contract means that I have not beein getting paid for my time off for my antenatal care and scan appointments whic is part of my rights. I feel that an extremely special time in my life is being dampened by this complication with my contract.

So, I am currently facing a battle with HR. At the very least I want them to backdate my contract to the beginning week in January. Then, entitling me to SMP. However, having worked at there now for over a year I feel I should be entitled to the maternity package they offer to staff who have worked for 52 weeks ..... irrelevant of who i was employed with (temp bank or the univeristy) my job at the preschool has been consistent.

I tried to sign up to Unison to seek help but they have informed me that as the matter has already happened they cannot advise me.

I am in touch with Citizens Advice and somebody who specifically deals in employment law but I thought it was worth posting on here! Any suggestions or advice would be very glady received.

(sorry if I have rambled!!)

[flowerybeanbag]

JellytotZ have a read of this factsheet from workingfamilies all about atypical workers and their maternity rights.

The difficulty is if you change your employer from the bank to the university during your pregnancy, you lose the right to SMP even though you are in fact doing the same job. You will see if you scroll down the factsheet there is a paragraph about becoming an employee of the company you work for during pregnancy.

For SMP purposes you are better off staying with the bank until the 15th week before your due date. But you say you have been told that even if you stay with the bank you will not get SMP, is that right? You will see in the factsheet that if you are employed by an agency as a worker for a 3rd party, you should still get SMP providing you meet the qualifying requirements in terms of service and average salary.

I'm not clear why your temp status is affecting you getting time off for antenatal appointments - that is your right regardless of who your employer is, are they really denying you that?

In terms of what maternity pay you should get you can certainly ask them to back date your contract so you get it, but there's no obligation for them to do so, and while you feel there is moral obligation for them to give you the enhanced package other university staff get, again there's no need for them to do so, and not having to pay out on expensive benefits is probably one of the reasons they employ staff through a bank anyway.

I agree you haven't been treated fairly, they all sound pretty incompetent and obviously the situation needs to be resolved, however I'm just pointing out that in terms of getting you SMP, you may not be able to get it. I agree that ideally as they've mucked you about so much backdating your contract would be the right thing to do, but you can't insist on it unfortunately. You also have no reason to think they would have started your contract that early had they not known about your pregnancy either, so you can't make that argument. You didn't tell them until February and presumably you hadn't been told beforehand that your contract would be backdated?

[JellytotZ]

Thankyou so much flowerybeanbag for your time and advice! I am just about to print off the factsheet and have a read.

I phoned HM Revenue and Customs yesterday and spoke to sombody specifically in the Statutury Payment Disputes Team. I was told that if the Univeristy 'temp bank' operates under the unbrella of services offered by the university as opposed to functioning as an independent 'agency' then infact it is not a question of my contract being backdated at all......It is to do with my continuity of service that I have provided at the preschool since last June, irrelevant of whether the temp bank/university were employing me. Therefore, I have been advised that I should definitely be entitled to SMP and any contractual maternity packages.

I then phoned ACAS (I found them online on the gov.uk site) and they told me to go with what HM Rev&Customs had said because they are the 'horses mouth' so to speak, and are the ones who pay SMP etc They also said to mention that I have paid NI contributions too...... light at the end of the tunnel??!!! I have a meeting today with HR so I am desperately hoping this can be solved so I can go back to work on Monday.

I am going to raise the point you make about my antenatal classes too. I think in light of everything else I had pushed it to the back of my mind when infact, I am entitled to this as paid leave! Even more so now having had 2 weeks with no pay ......

Do you think there is anyway I can ask to be paid for the last two weeks while they have been making decisions about my situation?? I should add that the meeting was initially for last Monday but it was cancelled at the last minute.....I found out through my manager, no one from HR emailed me!!! You are absolutley right when you say the HR team at the univeristy are incompetant. It seems to be a delay after delay!

Jellytots

[flowerybeanbag]

That sounds right from HMRC if that is the situation, and as ACAS said, as HMRC are the ones who actually pay SMP, if they would be prepared to reimburse the university for your SMP on that basis, then that's the key and you should definitely give that advice to your HR department.

I do agree that morally you ought to be paid for those two weeks, as you were willing and able to work and they have clearly said they are going to continue employing you on a different contract basis - the two week gap is purely their incompetence.

I think technically they could probably get out of it as you didn't work but do push it anyway as it wasn't your fault.