MNHQ here: free legal clinic with Maternity Action on maternity and parental rights at work during the Covid-19 crisis

[BojanaMumsnet]

Free online advice clinic 1 - 5 June 2020

Mumsnet and Maternity Action are teaming up to provide an online legal clinic, offering free advice on pregnancy, maternity and parental rights at work from volunteer employment solicitors and barristers.

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 Mumsnet, with members of the public posting questions about your questions on pregnancy, maternity and parental rights at work during the Covid-19 pandemic 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 1st to Friday 5th June 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 Monday of the following week. You can find information on where to go for more help once the clinic has ended here: Where-to-go-for-more-help-2.pdf

What to do if you’d like to post a question

1. If you have a question about your rights at work during pregnancy, maternity or parental leave please post it online during 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.
2. 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.
3. 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: www.surveymonkey.co.uk/r/CX28XKX

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: Where-to-go-for-more-help-2.pdf

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: maternityaction.org.uk/wp-content/uploads/Complaints-Policy.pdf

My employer refused to furlough me when I was 27 weeks pregnant and said I would only be entitled to ssp. I had to take my maternity leave early and use annual leave until my mat pay started. Is this correct?

I started my job on 10th February (They knew I was pregnant) i was then furloughed on the 30th March. Will I be entitled to any maternity pay? Even statutory pay...

Can you explain when it is possible to be furloughed for childcare reasons? Is this only allowed for parents who can’t work from home?

@Heat7277

I started my job on 10th February (They knew I was pregnant) i was then furloughed on the 30th March. Will I be entitled to any maternity pay? Even statutory pay...

Dear Heat7277

If you were already pregnant when you started your job you won't be able to qualify for Statutory Maternity Pay (SMP) from your employer. You need to be employed by the same employer for the first 26 weeks of your pregnancy to get SMP. However, you should check your employer's contract/maternity policy to see if they offer any occupational maternity pay as you may still be able to qualify for that.

If you cannot get SMP you can apply for Maternity Allowance (MA) instead. You can get MA if you have been employed (or self-employed) for at least 26 weeks in the 66 weeks before your baby is due. It can be any 26 weeks, they don't need to be in a row, and it can include work with more than one employer. MA is paid for 39 weeks at £151.20 pw or 90% of your average earnings if lower. You don't get the higher rate of 90% of your average earnings for the first 6 weeks unfortunately (as you do with SMP). You can claim MA once you are 26 weeks' pregnant and once you have completed the 26 weeks of employment.

The claim form is here: www.gov.uk/government/publications/maternity-allowance-claim-form

You should send in payslips for 13 weeks, with your highest earnings. If it includes furlough pay you should let them know what your normal earnings would have been as your MA must be based on the pay you would have received, not your furlough pay.

I hope that helps.

I have been freelancing for the last three year, however two years ago I took a year out for maternity (2018-19). Since that time I have only been working part time. I am now pregnant again, and hope to go on maternity leave this November. However due to coronavirus, I am not currently getting any work - and have had some support/maternity allowance from the government. My question is, will I still be able to get maternity support from the government this November? I am worried I won’t have met the tax threshold.

Sorry - just to clarify I meant to say I’ve had some government support vis a vis the coronavirus so far (NOT maternity allowance as I accidentally typed above) but am wondering whether I will be able to get maternity allowance this November (when baby is due). Thanks very much for your help.

My partner was advised by 111 to shield with me at the start of lockdown for 12 weeks as it wasnt possible for him to keep 2 metres distance at work but his employer refused to pay him furlough or ssp since so he has had no income, is his employer allowed to do this or must he furlough him?

At 25 week pregnant, I asked my employer if I could be furlough.
They said I couldn't be furlough as the company was still open and running.
I work in a care home not as a career but an activity coordinator, my job role also includes some personal care.
Because of this I didn't feel it was safe for me to work this close to residents, also no PPE for activity staff!
They gave the impression that I was at no more of a risk than someone working with asthma.
So if I felt unsafe at work I could to take all my annual leave then start my maternity leave (5 weeks before I wanted to start it)
Have I been treated fairly? Where they correct be not furlough me?
Many thanks

Hi,

I have been on maternity for 9 months now, a little while after I started, another company took over mine. Since then I have not been kept in the loop with anything, I've been blocked and ignored by all members of staff, and have had to email multiple times to beg for clarification that I still have a job there. I have definitely had major discrimination due to being on maternity. Now I am currently shielding and have been told by my consultant to do this til at least July. Was supposed to be returning to work in July and have let work know I'm shielding. They have sent me a form to sign saying that I agree to any changes being made to my job (will not outline the changes) and if I don't sign in 7 days then that will be my resignation without any redundancy. Is this legal? I do not want to sign if I don't know what changes will be made. Thanks!

Hello, I’ve posted previously about ongoing issues with my employer since I became pregnant. To no surprise redundancy is now on the cards for me, and fairly likely.
I am only entitled to Statutory Notice and Pay. My key question is that at what rate will my Statutory Redundancy Notice be at. If I am on Maternity Leave will it just be the Maternity Pay or are my employers obliged to pay me at my standard rate?
Thank you in advance

Hello,

I am currently on furlough and pregnant. I am now 15 weeks and have spent my entire pregnancy shielding (I was working from home from 20th March when I found I was pregnant and furlough began on 1st April). My furlough has been extended twice (May and June) and I do not know when I am expected back.

My question is, when should I notify my employer? I know I don’t have to until 15 weeks before planned mat leave, but I am concerned that this may affect my maternity rights. Should I wait until I am expected to work (I can work from home)?

My concerns are that redundancies may take place, and if they do and I haven’t notified my employer I have no maternity rights. On the other hand, I am concerned that if I tell my employer it could influence their decision on redundancy under the guise of the impact covid has had on the business. I know I can’t be made redundant for being pregnant, but this could be a deal breaker if they were contemplating redundancies.

I am looking for advice please?

Thank you

Hi I'm just after some advice with regards furlough payments. I returned to work after my maternity leave ended last month. With the current situation all employees are obviously furloughed. How should my furlough payments be calculated. I've been told im just getting 80% of my gross monthly pay but as part of my normal employment i work overtime which varies month on month. As I was off for most of 2019 and only worked 4 months of it, my average monthly salary for the year would be no good and this time last year I was on maternity pay. Can they do this? Also if it is incorrect even though i signed a furlough agreement and agreed to the pay cut can i go back and get it corrected. thank you in advance

Hi,
There are talks of making redundancy’s at my work. We as a company sell stationary to companies/offices in London so as you can tell it covid has hit us hard.
My question is, if I was to be made redunant while on maternity leave (I’m only 2 months into my 9 months leave) will I still be entitled to SMP for the full 39 weeks?
I’m worried they will make me redundant and I will loose my entitlement :(!!
Thank you,
Kacie

Hi,

My organisation enforced pay cuts a month ago on all staff for the next 12 months. We were threatened with redundancy if we didn't accept, so all accepted. I was six weeks pregnant at the time and didn't feel comfortable raising this at the time, but now I'm concerned about how it'll affect my maternity leave.

According to our policy I'm entitled to six months on full pay, followed by SMP and then unpaid, but will I have to accept my reduced pay instead for the first six months?

It's already having an impact on my income as it is, leaving me unable to save for my maternity leave. I'd like to know if I can make the case to receive my actual pay (it is described as 'full pay' in the policy) on maternity leave. The alternative is likely to be that I may have to reduce my maternity leave.

I have no new contract, just a generic letter (unsigned, it was done on an opt out basis) confirming the pay cut. It does not reference changes to maternity policy.

Also, if 100% pay is reinstated while I'm on maternity leave (likely to be SMP by that point), could I request to recoup any of it at all? It feels like I'm at a huge disadvantage through no fault of my own.

Thanks for any advice.

Hello,

Thanks for joining this clinic. Please could everyone who has posted a question also PM their name and their employer's name to MaternityActionfreeadvice. This is so that the volunteers can check for a conflict of interest - they won't be able to reply without this information.

Thank you
MNHQ

@BojanaMumsnet

Hello,

Thanks for joining this clinic. Please could everyone who has posted a question also PM their name and their employer's name to MaternityActionfreeadvice. This is so that the volunteers can check for a conflict of interest - they won't be able to reply without this information.

Thank you
MNHQ

@BojanaMumsnet Hello, I have done this. Thank you.

@Lujh

I have been freelancing for the last three year, however two years ago I took a year out for maternity (2018-19). Since that time I have only been working part time. I am now pregnant again, and hope to go on maternity leave this November. However due to coronavirus, I am not currently getting any work - and have had some support/maternity allowance from the government. My question is, will I still be able to get maternity support from the government this November? I am worried I won’t have met the tax threshold.

Dear Lujh

Thank you for your query. You can claim Maternity Allowance for your next baby if you have been self-employed in at least 26 weeks out of the 66 weeks before your baby is due and you have paid at least 13 weeks' Class 2 National Insurance contributions in that 66 week period.

If you are due in November 2020, your 66 week test period starts from August 2019 (depending on your due date). If you were working part-time for at least 26 weeks since August 2019 it is likely that you have already met that qualifying condition for Maternity Allowance. You don't have to work for the full week for a week to count. You can count each week (Sunday to Saturday) in which you did some work.

If you have not yet submitted a self-assessment tax return and paid NICs for that period you can contact HMRC and update your Class 2 NICs voluntarily if you are claiming Maternity Allowance. It is well worthwhile doing so as it will enable you to get the full rate of Maternity Allowance of £151.20. Otherwise you will only be awarded MA of £27 pw if you are self-employed and have not paid NICs.

You can submit your MA claim once you are 26 weeks' pregnant. The claim form is here and date charts to work out your 66 week test period: www.gov.uk/government/publications/maternity-allowance-claim-form

I hope that helps.

@busybee987

Hi I'm just after some advice with regards furlough payments. I returned to work after my maternity leave ended last month. With the current situation all employees are obviously furloughed. How should my furlough payments be calculated. I've been told im just getting 80% of my gross monthly pay but as part of my normal employment i work overtime which varies month on month. As I was off for most of 2019 and only worked 4 months of it, my average monthly salary for the year would be no good and this time last year I was on maternity pay. Can they do this? Also if it is incorrect even though i signed a furlough agreement and agreed to the pay cut can i go back and get it corrected. thank you in advance

Dear busybee987

Thank you for your query. The guidance on furlough pay states that for parents returning from statutory leave, the furlough pay must be based on your average pay, not including any periods in which you were on maternity leave or receiving maternity pay. This means your employer will need to calculate your average earnings solely on the period since the end of your maternity leave.

Your employer must include overtime when working out your pay. This is stated in the guidance here which you can show your employer: www.gov.uk/guidance/work-out-80-of-your-employees-wages-to-claim-through-the-coronavirus-job-retention-scheme

What to include when calculating wages

The amount you should use when calculating 80% of your employees’ wages is regular payments you are obliged to make, including:

regular wages you pay to employees
non-discretionary payments for hours worked, including overtime
non-discretionary fees
non-discretionary commission payments
piece rate payments
You can also show your employer the HMRC Direction on furlough pay here: www.gov.uk/government/publications/treasury-direction-made-under-sections-71-and-76-of-the-coronavirus-act-2020
This states at section 7.2 and 7.3 that when working out average pay for employees who do not have a fixed salary they must not take into account anything which is not normal salary, which means they must ignore the period when you had SMP as SMP is not regular salary or wages.

If your employer has not paid your furlough pay correctly they will need to contact HMRC to ask how to amend their claim. In any event, they must pay you the correct amount and if you are not paid correctly you can make a claim for unlawful deduction of wages in an employment tribunal. Please bear in mind there is a time limit of three months from the date you were paid incorrectly for contacting ACAS in order to start a tribunal claim. You can find more information on ACAS here: Where-to-go-for-more-help-2.pdf

I hope that helps.

So I went on maternity 8th April 2019 until 9th April 2020 and was immediately put onto furlough. However due to being a varied hours worker and I was on maternity for the majority of the tax year I'm getting an average of my OMP for my furlough NOT my normal wage because I didn't work for the last tax year. This is £82.50 fornightly. An average of my wage in 18-19 tax year would be £322.20 fortnightly so there's a large discrepancy. My employer is following the guidelines correctly as there are no allowances for this situation however, I am being discriminated against by the JRS system because I exercised my statutory right to maternity leave. How do I deal with this so that my employer can pay me an average of my normal rate of pay prior to my maternity leVe?

@MindfulUrchin89

So I went on maternity 8th April 2019 until 9th April 2020 and was immediately put onto furlough. However due to being a varied hours worker and I was on maternity for the majority of the tax year I'm getting an average of my OMP for my furlough NOT my normal wage because I didn't work for the last tax year. This is £82.50 fornightly. An average of my wage in 18-19 tax year would be £322.20 fortnightly so there's a large discrepancy. My employer is following the guidelines correctly as there are no allowances for this situation however, I am being discriminated against by the JRS system because I exercised my statutory right to maternity leave. How do I deal with this so that my employer can pay me an average of my normal rate of pay prior to my maternity leVe?

Dear MindfulUrchin89

Thank you for your query. Unfortunately this has been a common problem and it's because the guidance for employers is not as clear as it could be on this point.

The guidance on furlough pay for variable hours workers, as you know, states that employers should use either average earnings in 2019/20 or average earnings in the same month last year. However, the same principle applies as for employees on a fixed salary which is that furlough pay must be based on normal pay, not 'the pay they received whilst on family-related statutory leave '. This is the guidance here: www.gov.uk/guidance/work-out-80-of-your-employees-wages-to-claim-through-the-coronavirus-job-retention-scheme under the section Employees returning from statutory leave.

Unfortunately the guidance doesn't clearly state this in relation to employees on variable hours, so you will need to show your employer the HMRC Direction on furlough pay here: www.gov.uk/government/publications/treasury-direction-made-under-sections-71-and-76-of-the-coronavirus-act-2020
The HMRC Direction is legally binding, whereas the guidance is just guidance.
The HMRC Direction states at section 7.2 and 7.3 that when working out average pay for employees who do not have a fixed salary they must not take into account anything which is not normal salary, which means they must ignore the period when you had SMP or occupational maternity pay as those payments are not regular salary or wages.

7.3 The following must not be included in the calculation of an employee’s reference salary
(a) benefits in kind;
(b) anything provided or made available in lieu of a cash payment otherwise payable to the employee (including salary sacrifice schemes);
(c) anything which is not regular salary or wages.

If your employer has not paid your furlough pay correctly they will need to contact HMRC to ask how to amend their claim under the CJRS. Your employer is also likely to have to seek advice from HMRC as to the period they should use to work out your average earnings because your maternity leave almost exactly covered the tax year. This is likely to be the month prior to the start of your maternity leave or possibly the month of March 2019.

In any event, they must pay you the correct amount of furlough pay and if you are not paid correctly you can make a claim for unlawful deduction of wages in an employment tribunal. Please bear in mind there is a time limit of three months from the date you were paid incorrectly for contacting ACAS in order to start a tribunal claim. You can find more information on ACAS here: Where-to-go-for-more-help-2.pdf

I hope that helps to resolve it.

Hello, my work is currently making redundancies company wide for a role I do, there is estimated to be 10 redundancies in total. They have advised part of the criteria will be annual reviews and monthly 121s. I am currently on Maternity leave, my concern is early 2019 my reviews will be great as I was not pregnant, the latter half I was pregnant and whilst I did nothing “wrong” I wasn’t go above and beyond anymore, will this be held against me?

That’s really helpful, I’ll look into the Class 2 NICs. Thanks for your advice.

@Phoenix85

Hello, I’ve posted previously about ongoing issues with my employer since I became pregnant. To no surprise redundancy is now on the cards for me, and fairly likely. I am only entitled to Statutory Notice and Pay. My key question is that at what rate will my Statutory Redundancy Notice be at. If I am on Maternity Leave will it just be the Maternity Pay or are my employers obliged to pay me at my standard rate? Thank you in advance

Dear Phoenix85,

Thank you for your enquiry.

As you have said that you are only entitled to statutory minimum notice, the notice period should be paid at your full rate (although the Statutory Maternity Pay would be offset against it – i.e. you would not receive this in addition to the notice pay for that period, unless they paid you in lieu of notice). The same applies to any accrued but untaken holiday pay. You will remain entitled to the balance of Statutory Maternity Pay which should be paid in addition to notice, holiday and any redundancy pay applicable.

Please remember that if you are on maternity leave whilst redundancy consultation is ongoing, you have the right to take priority for any suitable alternative vacancy that may be available.

Hello, I work as a sales rep for a soft drinks company. My role would be to visit supermarkets. We were furloughed up until this week and now want us visiting 2-4 supermarkets per day to merchandise (taking stock from warehouse and filling shelves). I am currently 21 weeks pregnant, my employer has said it is safe to work as long as I can maintain a 2m distance from people and wear PPE that they provide. Working from home is not an option. I Would like advice if a public facing role like this, mixing with a lot of people each day is safe and the likelihood that I can maintain a safe distance from people in this environment. Supermarket staff do not wear PPE and it’s is a customers choice if they wish to wear PPE. I also don’t have information on the cleaning routines within stores. Thanks

@PipTed

Hello,

I am currently on furlough and pregnant. I am now 15 weeks and have spent my entire pregnancy shielding (I was working from home from 20th March when I found I was pregnant and furlough began on 1st April). My furlough has been extended twice (May and June) and I do not know when I am expected back.

My question is, when should I notify my employer? I know I don’t have to until 15 weeks before planned mat leave, but I am concerned that this may affect my maternity rights. Should I wait until I am expected to work (I can work from home)?

My concerns are that redundancies may take place, and if they do and I haven’t notified my employer I have no maternity rights. On the other hand, I am concerned that if I tell my employer it could influence their decision on redundancy under the guise of the impact covid has had on the business. I know I can’t be made redundant for being pregnant, but this could be a deal breaker if they were contemplating redundancies.

I am looking for advice please?

Thank you

Dear PipTed

Congratulations on your pregnancy

I can see why you are unsure how to proceed given the uncertainties surrounding job security generally during the pandemic.

You are right in that for maternity leave purposes, you are not required to inform your employer of your pregnancy until the 15th week before the EWC. However, you will not be able to benefit from rights such as the entitlement to paid time off for antenatal care, risk assessments and the statutory protection on account of your pregnancy from discrimination or dismissal until your employer is made aware that you are pregnant. On this basis it is often preferable to inform your employer sooner rather than later.

I hear your concern that they might react negatively to the notification and use the pandemic as a reason to remove your role. Certainly the thresholds for employers to justify redundancies may have been lowered a little given the current circumstances. That being said, they should still consult with you if your role is at risk and discuss any proposal to remove your role before dismissing you. In that context you would also be able to raise any concerns you might have about the redundancy not being genuine. If, for example, you become aware that you are the only person performing your role who has been dismissed for redundancy then could indicate a decision may have been made based on the protected characteristic of pregnancy and the burden would be on your employer to demonstrate that was not the case.

Ultimately it is your choice and one can never guarantee how an employer will react to notification of a pregnancy. That being said, I would hope that they are supportive and conduct themselves in a manner consistent with the protection afforded to you by the discrimination legislation.

I hope that helps.