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MNHQ here: post your pregnancy & maternity work questions here for FREE legal advice from Maternity Action
36

JuliaMumsnet · 04/03/2022 09:43

Free online advice clinic 7th March - 11th March 2022 - OPEN NOW.

Welcome to the first clinic of the year and happy almost-spring to all of you.

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

Whether you have a question about maternity leave, your request for flex work, your rights as a pregnant worker, or think you may be discriminated against by your employer because of being a parent or parent-to-be, this is the place for you.

The clinic will run for a week from Monday 7th to Friday 11th March and is one of several that we hold each year. The Maternity Action team will do their best to provide all answers during the week and at the latest by the Tuesday of the following week. More information on where to go for more help once the clinic has ended is here.

How it works:

  1. If you have a question about your rights at work during pregnancy, maternity or parental leave please post it online from today and before the 11th March. 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 private message to disclose any information you'd 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. 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.
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MaternityActionfreeadvice · 11/03/2022 09:36

@Greybutterfly

I have been advised that I have to continue paying my student loan repayment whilst on maternity. I am taking a year off and am entitled to 3 months full pay, 3 half pay plus smp, up to week 39 smp, then no pay for remainder.
Is it correct that my company will continue to deduct this for the first 6 months. Having to pay this out means I probably cannot now afford to take as much time unpaid. Is there any way I can defer this whilst on maternity?

Dear Greybutterfly

Thank you for your query. Occupational maternity pay and Statutory Maternity Pay are subject to normal deductions including tax, National Insurance and student loan repayments. However, depending on the overlap between your maternity leave and the tax year (April 2022 to March 2023) you may be eligible for a rebate if you have paid too much student loan over any particular tax year.

Unfortunately you can only apply at the end of the tax year but the Student Loan Company will refund any overpayments if your earnings (including any occupational or statutory maternity pay) were below the threshold for repayment of your student loan or you have repaid too much student loan over the year because of a drop in earnings during maternity leave.

You can also apply to HMRC if your maternity leave has resulted in an overpayment of tax by the end of the tax year.

I'm not sure if this will help but also bear in mind that you accrue annual leave during your maternity leave as if you were still at work and this could give you a few more weeks of paid leave at the end of your maternity leave. Your annual leave should be paid at your normal rate and should be arranged with your employer in the normal way. If you're not intending to take your full year of maternity leave you must give your employer at least 8 weeks' notice to return to work early.

You can also work for up to ten keeping-in-touch days if your employer agrees. This can be during your paid or unpaid maternity leave but it's important to check the rate of pay for a KIT day before working and whether your employer will offset it against your maternity pay.

I hope that helps and best wishes.
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Riskassess · 11/03/2022 12:55

I work in a patient facing role and have had a risk assessment completed which recommends that I should be non-patient facing from 28 weeks due to Covid risk. During my 30th week of pregnancy I am due to move to work in a different clinical area and HR have said I will need a new risk assessment for this area which my union has confirmed is legitimate.

I am concerned that the outcome of the new risk assessment will be that I can continue to work in a patient facing role.

  1. What happens if I disagree with the new risk assessment?
  2. If I disagree do I have to work in the new area until the dispute is resolved or would the default be the non-patient facing option as per my current risk assessment.
  3. I'm now struggling to get the new risk assessment completed as those responsible are not replying to my emails chasing completion of this - what happens if no risk assessment is done?
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Riskassess · 11/03/2022 13:17

I've also tried to PM you my details however like a previous poster it says "nickname not recognised". Please can you advise.

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MaternityActionfreeadvice · 11/03/2022 14:07

@Jessica5950

I am due to return to work having taken just over six months maternity leave. The man who was covering me is being kept on as ‘extra capacity’ but his new role is leadership of various departments that I was previously responsible for, essentially stripping my role of over 50% of its responsibilities. I lose ultimate responsibility of vast swathes of the company as his new role will not report to me but be on the same level. It essentially means, to me, my previous role has been divided up although they say the job description will remain the same and are claiming no change to my role? The reason given is that we need more capacity which I accept, but to lose so much of my previous role surely is not right? And means a loss of seniority in essence as my role is equivalent to CEO.

Dear Jessica5950

Thank you for your question. I am sorry to hear about your situation, which is clearly upsetting for you.

As you have taken more than 26 weeks maternity leave your rights on return to work are to return to the same job you previously held, unless it is not reasonably practicable for you to do so, in which case your employer may offer you a suitable alternative job. A suitable alternative job in these circumstances is one which is both suitable for you and appropriate in the circumstances. The terms and conditions must not be less favourable that they would had you not been absent.

Employers often wrongly assume that if you have more than 26 weeks maternity leave, you lose your right to return to the same job and must only be offered a suitable alternative. In fact, you only lose your right to return to the same job if they can demonstrate that it is not reasonably practicable for you to do so. This may be the case, for example, if there has been a reorganisation (although the circumstance would be fact specific). A general preference for your maternity cover to stay on and continue to perform some of your role, is unlikely to be sufficient in the circumstances.

As you've mentioned that there is clearly a need for additional capacity, the challenge appears to be how to achieve this without undermining your existing role and disadvantaging you because of your absence on maternity leave. It may be maternity discrimination if you have been treated unfavourably 'because of' your absence on maternity leave. Demonstrating that these changes were because of your maternity leave is often difficult to do and the law as it currently stands is complex and difficult to enforce. The starting point is to explore the reasons why your employer is changing your role in this way and whether it is possible to achieve additional capacity without loss of seniority. As your goal is to return to work and maintain a good working relationship with your employer it's important to keep discussions informal and constructive for as long as possible.

If you have not had satisfactory responses from your manager or your employer’s HR team so far on why this change is resulting in loss of seniority, you may need to pursue this with your employer more formally and via your internal grievance process. I recommend that you set out your concerns regarding the change in your role and responsibilities, and highlight why it is not a suitable alternative role and why you think the loss of seniority stems from your maternity leave. Should you ultimately wish to pursue a claim of against your employer I would suggest seeking further legal advice and bear in mind that there are strict deadlines for taking action in a tribunal. We have further information on time limits and next steps here: maternityaction.org.uk/where-to-go-for-more-help-legal-clinic/
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MaternityActionfreeadvice · 11/03/2022 14:09

@Riskassess

I've also tried to PM you my details however like a previous poster it says "nickname not recognised". Please can you advise.

We have sent you a DM, hopefully you can see and reply back?
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MaternityActionfreeadvice · 11/03/2022 14:11

We hope you have found this legal clinic helpful. A big thank you to our volunteer lawyers.
Once this thread has closed we will post the remaining replies early next week and send it to you by DM.

You can find information on maternity and parental rights at work and benefits on the Maternity Action website: maternityaction.org.uk/
We provide free legal advice on our helpline on 0808 802 0029 (National) or 0808 802 0057 (if you live or work in a London borough)

This week we are raising money through the Big Give to expand our advice service. Every pound you give will be doubled until 15th March.
If you have found this legal advice helpful please share this link with friends and colleagues: donate.thebiggive.org.uk/campaign/a056900002AtwkXAAR

Thank you!

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MaternityActionfreeadvice · 14/03/2022 15:18

@Whambams

I am due in August and my holiday allowance runs Jan-Jan.
1. Am I right in thinking I am entitled to all my annual leave for the year, even of I'm on maternity from August?
2. I can't carry over holiday, so can I use it when baby is born and start maternity leave a week or two later?

My job is low stress and home-based so I might as well work up 'til baby arrives so I have more time not paying for childcare the other side of birth.

Dear Whambams

Congratulations on your pregnancy and thank you for your questions. Please find below my responses.

1. I am due in August and my holiday allowance runs Jan-Jan. Am I right in thinking I am entitled to all my annual leave for the year, even if I'm on maternity from August?

Yes, you are correct: you continue to build up ("accrue") your usual holiday entitlement during your maternity leave, as if you were still at work.

By law, all workers are entitled to a minimum of 28 days' paid holiday per year (which may be pro-rated if you work part time). This is equivalent to 5.6 weeks holiday per year and can include Bank Holidays, depending on your contract. Your employer is required to allow you to take the full amount of this statutory holiday entitlement during the holiday year.

2. I can't carry over holiday, so can I use it when baby is born and start maternity leave a week or two later?

It is very much up to you to decide when you wish to take your holiday. Many women opt to add some holiday to the beginning or end of their maternity leave. Whatever you decide, it is advisable to agree this with your employer as soon as you are able to in the usual way (and preferably, get your employer to confirm in writing what has been agreed). If you haven't been able to use up the statutory minimum of 28 days paid annual leave because of maternity leave your employer must allow you to take it at another time.

All the best of luck with everything!
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MaternityActionfreeadvice · 14/03/2022 15:21

@LaddieCthulu

Hi,

I was interviewed, offered and accepted a conditional offer for a job in the NHS in January when I was 6 weeks pregnant. Idid not tell them as it was such early days. I completed paperwork in January where they askedme to say if I had a disability, which would INCLUDE pregnancy stating they would need to assess risk at the work place. I did not declare it as I was still only 7-8 weeks.

I have just received the unconditional offer thisweek as it takes the NHS ages to process hr docs. I am now about 14 weeks and wish to declare the pregnancy.

Have I done anything wrong? Could they pull my contract? My midwife said I have no duty to tell them until 25 weeks but the form worries me. I didn't even know if we would be proceeding with the pregnancy at that point though!

Any advice would be welcome.thanks.

Dear LaddieCThulu

You are not required to declare your pregnancy before accepting a conditional job offer. You can also go ahead and accept the unconditional offer which you have received without declaring your pregnancy.

It may be pregnancy discrimination if your employer withdraws the unconditional offer on learning of your pregnancy. It may also be pregnancy discrimination if your employer dismisses you after you accept the unconditional offer for not declaring your pregnancy during the recruitment process.

Generally speaking, employers should not ask potential employees whether they are pregnant during the recruitment process. If you did tell your employer back in January, they would not have been able to take it into account in deciding to make an unconditional offer in any event (otherwise again, this could be pregnancy discrimination).

As your midwife has said, you are not legally obliged to tell your employer about your pregnancy until the 15th week before your baby is due (this is when you are about 26 weeks' pregnant). However, once you have reached the 15th week before your due date (or as soon as possible afterwards) you must give the correct notice for maternity leave and pay.

You may want to disclose your pregnancy earlier (and it may be obvious before then anyway) if you think your employer might suspect you are pregnant or you want paid time off for antenatal appointments or if there are any concerns from a health and safety perspective when you start your job and you want your employer to assess any risks in the workplace and make any adjustments.

You will be entitled to up to 52 weeks' maternity leave, but you would need to have been employed by the same employer for at least 26 weeks by the 15th week before the expected week of childbirth in order to qualify for Statutory Maternity Pay. You will instead be able to claim Maternity Allowance. See information on Maternity Allowance on the Government's website here - www.gov.uk/maternity-allowance You should also check the NHS maternity policy to see if you are entitled to occupational maternity pay as this can include other types of NHS or NHS-related service.

With best wishes
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MaternityActionfreeadvice · 14/03/2022 15:23

@duckme

My employer kept my 'temporary' maternity cover on after I returned. There isn't enough work for all of us and it has had a massive impact on my mental health since returning to work. Whilst I was away, parts of my job were given to another member of staff who was promoted to include the work that I used to do. This was done without an interview process or me being asked if I would like to be considered for the role. This person was given a pay rise to bring her in line with my pay and scale.
I did return to work doing different hours to what I did prior to leave, so I'm not sure where I stand. But I'm sure that the promotion in particular was done before I had notified them of my intent to go part time and therefore they should not have been stripping my role and sharing it around the office.
Do I have any rights here? Were they in the wrong?

Dear duckme

I'm sorry to hear of the difficult position you've been placed in on return from maternity leave and the impact on your health. Your questions raise a number of issues and I'll try to cover everything.

Firstly, a failure to notify a promotion opportunity or to consult with you on changes in your workplace during maternity leave may be maternity discrimination. Secondly, it's important to consider your rights on return from maternity leave. You have the right to return to exactly the same job on the same terms and conditions regardless of whether you are taking 6 months' leave or up to a year of maternity leave. However, if you have taken more than 6 months leave your employer can offer a suitable alternative role but only if it's not reasonably practicable for you to return to your old role. If you are asking to return to your role part-time, your employer should still be allowing you to return to your old job but on a part-time or more flexible basis.

The circumstances in which it might not be 'reasonably practicable' for you to return to the same role will vary enormously from case to case but it's unlikely to be acceptable if your maternity cover has been kept on or colleagues have been give parts of your role. It is expected that your employer will hold your job open for you so that you can return after maternity leave, however, where you have taken a longer period of leave and there have been work-related changes or a reorganisation that has impacted on your role, your employer may be justified in making certain changes. In some cases changes in the business while you have been away may have led to a need for more staff and in other cases there may be a potential redundancy situation and your employer needs to reduce staff numbers. Failing to give a woman her job back when work has been retained by other staff members can often make women returning from maternity leave vulnerable to redundancy, however, this may be an unfair dismissal, automatic unfair dismissal and/or maternity discrimination.

Given the situation you have described where you have reduced your hours but some staff have retained aspects of your role and others have been promoted into roles that overlap with your job it's important to consider how best to resolve this so that you are not disadvantaged because you have been absent on maternity leave. In order to claim maternity discrimination you need to show that you have been treated unfavourably because of maternity leave. It's important to explore the reasons for these changes, whether your job was in fact held open for you and how the work can now be reorganised so that you are able to return to a substantially similar role and you are not put in a position where you could be at risk of redundancy. If you think that this position could have been avoided if your employer had consulted you on the new post and given you an opportunity to apply for it you should raise this.

It's important to consider carefully what outcome you would now like to see as trying to enforce your legal rights can be difficult and costly. If your priority is to keep your job and resolve some of the issues that have arisen, I suggest asking for a meeting with your employer e.g. your line manager, more senior manager and/or HR. If you are unable to resolve it by talking to your employer informally, you could set out your concerns in writing and finally, you would also be entitled to raise a formal written grievance, however, I would use this as a last resort as it tends to be treated as a complaint rather than a way to find constructive solutions. If you feel that you can no longer work for this employer, you could ask for a meeting to set out what has happened and the impact it has had on your position in the company and explore whether your employer would be willing to agree to a redundancy or exit settlement.

If you decide that you want to pursue the matter in an employment tribunal I would suggest getting further legal advice after speaking to your employer as the outcome of litigation is always uncertain. You should also bear in mind that there are strict time limits and it is possible that some of the events are now out of time unless you can show that there has been an ongoing course of discrimination. If you are thinking of pursuing a claim you will need to contact ACAS on 0300 123 1100 to register for early conciliation. They will try to help you and your employer resolve the dispute before starting an employment tribunal claim. Please be aware that you have three months, less one day, from the date of the act or series of acts you are complaining about to contact ACAS. We have further information on time limits and next steps here: maternityaction.org.uk/where-to-go-for-more-help-legal-clinic/

I wish you the very best in trying to resolve this.
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MaternityActionfreeadvice · 14/03/2022 15:25

@Riskassess

I work in a patient facing role and have had a risk assessment completed which recommends that I should be non-patient facing from 28 weeks due to Covid risk. During my 30th week of pregnancy I am due to move to work in a different clinical area and HR have said I will need a new risk assessment for this area which my union has confirmed is legitimate.

I am concerned that the outcome of the new risk assessment will be that I can continue to work in a patient facing role.

1. What happens if I disagree with the new risk assessment?
2. If I disagree do I have to work in the new area until the dispute is resolved or would the default be the non-patient facing option as per my current risk assessment.
3. I'm now struggling to get the new risk assessment completed as those responsible are not replying to my emails chasing completion of this - what happens if no risk assessment is done?

Dear Riskassess

I am sorry to hear of the difficulties you are having at work. Health and safety protection can be very difficult to enforce in the workplace and it has been especially difficult to enforce during the pandemic in relation to covid-19 despite the high risks to pregnant women.

RCOG and Government guidance, which I will link to below, continue to advise that pregnant women are higher risk in relation to covid and that adjustments must be made to reduce risks:

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

www.gov.uk/government/publications/coronavirus-covid-19-advice-for-pregnant-employees/coronavirus-covid-19-advice-for-pregnant-employees

The last guidance also states that some healthcare settings may have a higher risk of exposure to covid 19 and that employers must be more cautious for women who are more than 26 weeks' pregnant.

If you are unhappy with the risk assessment or adjustments that are recommended I would suggest asking for your union's support. You can also get advice from the Health and Safety Executive or raise a 'concern' if you want them to contact your employer and investigate: www.hse.gov.uk/mothers/ You can raise a concern here: services.hse.gov.uk/concernform/

If you are concerned about risks at work that you think your employer is not taking into account it can help to speak to your own health professionals and ask for a letter from your midwife or fit note from your GP specifying the risks and adjustments needed. Employers must take into account your individual role, medical evidence and any health conditions when considering the risks and what adjustments are needed. If you are becoming very concerned about risks at work you should discuss with your health professionals as you may need to take sick leave or annual leave while this is resolved.

If you are waiting for a risk assessment or adjustments and you are unable to work safely, your employer should be providing a maternity suspension if they are unable to provide safe suitable alternative work. It is important to check that they are providing a maternity suspension so that you are not considered to be absent without leave. Note that if you are suspended for health and safety reasons your employer can trigger your maternity leave/pay from 4 weeks before your baby is due if this has not been resolved by then.

If there are risks and your employer has failed to take action you should get further legal advice from your union as you may have a claim for any loss of wages you have suffered and/or pregnancy discrimination. You have a time limit of three months (less one day) from the date of the act or series of acts you are complaining about in order to start a claim. You must contact ACAS on 0300 123 1100. ACAS will try to help you resolve it through early conciliation.

Very best of luck in trying to resolve this.
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MaternityActionfreeadvice · 14/03/2022 15:36

@GrouchyLadybird88

My company offers yearly pay rises that are performance based. These are awarded on the anniversary of your start date so everyone gets their pay review at different times of the year. Each year you are awarded either nothing, A or B. This year I have been awarded A but advised this has been adjusted to a pro rata amount as I was on maternity leave for 4 months of the year. Are they allowed to do this?

Dear GrouchyLadybird88,

Thank you very much for your question. I hope you and your baby are doing well Smile

The fact that you have taken maternity leave over 4 months of the year should not affect your pay rise going forward. You are legally entitled to take maternity leave and you are protected from discrimination on the basis of pregnancy/maternity and sex. There is a carve out permitting your employer to reduce your pay (including to nil) while you are on maternity leave. Also, if the employer is awarding a backward looking bonus for work in the period you were off, they can reduce that pro rata to reflect the period you were off as it also falls under the rule that allows them to reduce pay in respect of the period on maternity leave. However, outside that specific carve out, you cannot be treated less favourably for being on maternity leave. The rule is called the "maternity equality clause" and is found in section 73 and 74 of the Equality Act 2010.


· A forward looking pay rise is very different from pay during maternity leave, or a bonus in respect of the year you were off. Pay rises in your company are performance based. Women who have been on maternity leave must be treated in all respects when they return to work as if they had not been absent. This means that if your employer has said "because you were off on maternity leave in the past, we are giving you a smaller pay rise going forward" that would be discriminatory and you should challenge that. From your question that seems to be what has happened.


· However, if that is not the case, and instead they are just not paying you the pay rise for the months you were on leave, but it will be paid going forward and your monthly pay now is the same as if you had been awarded the full rise, that may be permissible though I do not think that is what you have described.


· If you are still on maternity leave, you are entitled to any pay rise that you would have received had you not been on maternity leave and you should also get the pay rise once you return to work (and in some cases your maternity pay should be increased to reflect the rise).

I am wondering if your employer has confused the rules around awarding a backward looking bonus (which can be reduced pro rata to reflect maternity leave) with forward looking pay rises where they cannot make such a reduction. It could help to discuss this with them and ask whether they have maybe done that inadvertently and can therefore reconsider the decision now that you have made them aware of the problem and the maternity equality clause. Hopefully that will work.

If you do find that there are still any areas of disagreement with your employer you do have the option of raising a grievance but it tends to be best to try and resolve matters informally when you can. Also, be aware that there can be tight time limits to raise a claim in the employment tribunal. Normally these run from 3 months from the date of the alleged discrimination. To avoid any time limit issues you may wish to take legal advice and contact Acas to start the tribunal process within three months of the decision not to award the pay rise and I suggest not leaving it to the last minute. Raising a claim is free, but it is also a significant step so we suggest trying to discuss this in the first instance.

I wish you all the best and please refer to the Maternity Action website for more information relating to rights during maternity leave and return to work: maternityaction.org.uk/advice/discrimination-during-maternity-leave-and-on-return-to-work/
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