Employer Won't Pay SMP

[sophlouu98]

Hi everyone, I have been working for my current employer now for 4 and a half years (5 in November.)
I am expecting my second baby. My first was unfortunately stillborn full term due to a cord accident at 37+5, 19.01.18** ... So as you can understand this is stressful enough as it is without the added stress of this upon my shoulders.
I am due to go on maternity leave the 22.08.19. I sent an email to my employer 15 weeks before my due date stating when I would like SMP to start. I also provided proof of my pregnancy by handing in my MATB1 form. I done this within the correct set timescale and have proof of the sent email as evidence. 28 days passed since I sent the email and I received no response from my employer, confirming my SMP or giving me an SMP1 form to refuse my pay.
I text my employer about my maternity pay again, stating all the facts why I was entitled to SMP. Upon a verbal discussion with my employer she then informed me that she has had me on a 3/6 month contract that she has kept renewing for 4 and a half year, but will not be renewing it this time around. She stated the contract ran out in May, however informed me of this in a verbal discussion on the 18th of June. AND I am still working for my employer. She basically said I had not been working for her for 26 weeks or the 15th week before the baby is due as the contract ran out, (this is despite me still working there!)
I then informed her that if that was true she had to provide me with an SMP1 form. She was hesitant at first saying that she didn’t need to as I ‘technically’ wasn’t employed by her anymore as the contract had ended... despite me still working there and I have bank statements from the company which I can prove I have been working there for a lot more than 26 weeks! She then told me she would sort out the SMP1 form and when she is to give me it will provide me with a P45 at the same time. She said she was only a small business and wouldn’t be able to afford to pay me SMP as she is reliant on funding despite me telling her that she can re-claim statutory pay from HMRC.
I have seeked advice from ACAS who have said that despite her saying that my contract has ended, because I have still been working there, have bank statements as proof, that there could have been a verbal agreement in place for me to still do the role I am working. Therefore I still work there despite what she is saying about a contract ending. No end of contract notice has been given to myself what so ever. I have spoke to HMRC as well who also say that I satisfy the criteria for SMP and am awaiting them ringing me back so I can open a case against my employer.
Do you think that HMRC will be able to win my case against my employer? I have played everything by the book and provided all the evidence I should of regarding my pregnancy and SMP. She however is just making herself look dodgy as hell! I am so stressed with this and just want it sorting. It is having such a negative impact on my health, I dread going into work and when I am at home I can’t help but cry through the stress and upset of this situation. Any advice please? HMRC should be ringing me by next week regarding my case.**

I would say that your employer may have to prove that she hasn't dismissed you for reasons of your pregnancy, if the facts are as you state them.

Bloody hell, it seems like your manager has no clue. Please get legal advice and fight this as far as you can, as employers like this need to be made an example of

What a cf! Can't companies claim back 92% of SMP back anyway?

She can get an advance payment of the SMP from HMRC if she cant afford to reclaim it back in arrears.

You HAVE been working for her for that time, has she provided you with payslips each time you have been paid? Contact ACAS, they will send her a letter confirming what she has to do regarding the SMP.

It doesn’t matter that she’s been dodgy with contracts, it counts as continuous employment. As you’ve been employed for over 2 years, my understanding is that from an employment law perspective this is a redundancy, not an end of contract. You should receive a severance package.

Due to this coinciding with your request for amp, This smacks of unfair dismissal and discrimination though and to be honest I’d get legal advice from an employment law specialist.

@cheesenpickles as a small employer she actually gets back 103% of it!

Sorry, saw you spoke to ACAS - is she aware of this? YES you will certainly win in any HMRC investigation, however you need to put things in writing if you haven't had payslips, write an email each week stating you have worked x,y,z days that week and expect payment on xx/xx/xx for work completed (this then should be backed up with payments into your account)

I forgot to add upon speaking to ACAS they definitely think the reason for her saying the contract has ended is to avoid paying SMP, as it is very convenient. They have also said I would probably have a claim for unfair dismissal.

Keep chasing up with ACAS and follow their advice. Get everything in writing.

Tell her (in writing) you don't know what she's talking about with the 6 month contracts. Ask her to see the historical ones and make clear in writing you were employed on a FT permanent basis. Don't resign or stop work unless she explicitly tells you in writing you are fired from a specific date. That doesn't mean you can't take sick leave if she is making you ill (your health is no. 1 priority), but try to keep it to short bouts.

If it is as you describe it does sound a rather easy win. Employment tribunals are not fun, but stick at it- the pay out will be worth the effort and people should not get away with this.

She is a complete muppet. She's cost herself thousands when your SMP would have been paid for.

P.S. Have someone else in all meetings with her. Document what was said immediately afterwards.

How can she say she has kept you on 6 months contracts and just kept renewing them, surely she would of had to have you sign them everytime?
Definitely fight this, but try not to stress (easier said then done I know)

If you haven't signed these contracts every six months and been made aware that they were being renewed then she has no evidence they even existed in the first place. Personally, you've done all the right things and she has no leg to stand on. Don't worry, work until you need to and you will definitely receive what you're entitled to. I wish you and baby best of health

Please make sure that you don't let this lie, you need to get proper advice from ACAS and present her with the facts. Paying you SMP will be a hell of a lot cheaper than the money you will be entitled to when you claim and win an unfair dismissal case.

Can ACAS provide a representative for you to meet with her? If not, I'd maybe seek legal advice and ask them to draft her a letter.

I can't believe employers think they can get away with things like this . Yes Acas and .gov website will have all the info you need .
She is breaking the law don't let her get away with it .

What a disgusting woman, how on Earth does she think she is going to get away with that!

So sorry about your previous loss wishing you all the best with this baby xx

She's not only evil, but very stupid.

If I were you I would take her to the cleaners not only for the SMP but for unfair dismissal.

If you can somehow get her to say in writing that she's dismissed you because she can't afford SMP then you're on to a winner as that's clearly pregnancy related so automatically unfair and a tribunal would definitely side with you.

I'd milk this for all you can to be honest.

Do you have legal expenses cover with your home insurance? This is exactly what it’s there for and the case sounds like an absolute slam dunk.

As someone who was sacked for being pregnant, I hope you pursue this all the way.

Your case is stronger than mine, as I had been there less than 2 years but received enough in compensation to repay all my debts and buy a new car. I then claimed maternity allowance from the dwp.

Good luck

Even if it was true about the rolling contract, it doesn't even make a difference to your claim as your total employment is what will be considered here. Fixed term/temp employers can't be treated unfavourably to perm employees.

WTF have I just read?! Take her to the cleaners!!! Of course she has to pay as you've been there continuously regardless of contract. Fight her all the way please!!

4 years on continuous temporary contracts would mean you became permanent anyway. And you can’t end a FTC without going through a process or having a valid reason.

You have 2 choices. Either suggest, strongly, that she get legal advice on this or let her dig the hole and take her to tribunal.

Christ, this is blatant arc discrimination on the ground of pregnancy. Speak to ACAS, get legal advice and sue!

Sex

wow CF

Don't let her get away with this

So sorry about your loss, I hope it all goes well

Of course HMRC will be able to win. There is absolutely no question that she has to pay you SMP. If she is ending your employment you will also almost certainly be entitled to redundancy pay. And, as she appears to be sacking you because you are pregnant, that is pregnancy discrimination and possibly also unfair dismissal.

If she paid SMP as she is required to by law she would be able to recover 103% of it from HMRC, so it wouldn't cost her anything. By behaving as she has done she is going to have to pay you damages if you take it to tribunal. This could be thousands of pounds and may be a five figure sum depending on your earnings.

Don't leave it to HMRC. Check to see if you have legal expenses cover on your home insurance and see a solicitor who specialises in employment law. What you describe sounds like an open and shut case.