Keep in touch days - payment

[Heytheremamas]

Hi,

my employer has paid my KIT days and they are much less than I was expecting - just want to check if this is correct if there are and HR expert mamas out there?

they have calculated my day rate as follows:

My salary / 12 (months in the year)/ days in the month

So basically, my day rate is lower than I was expecting as they have counted Saturday and Sunday as days.

They have then deducted the daily rate of SMP.

So basically, I am getting less than half of what I was expecting.

Does anyone know if this is legal?

Sorry I don’t know for sure but surely the better way of working out someone’s day rate is
Annual salary / 52 weeks / contracted hours per week
So including Saturdays and Sundays doesn’t seem right at all.

I'm fairly sure they are taking the piss - if nobody else can help try ringing ACAS.

Sat and Sun shouldn't be included.
And they can't affect SMP. As per ss from gov website. (Point 3.12)

www.gov.uk/government/publications/maternity-benefits-technical-guidance/maternity-benefits-technical-guidance#statutory-maternity-pay-smp

Go on Salary calculator to work out your hourly pay.

They can certainly offset SMP.

Do they have anything in their maternity policy about it? 1/260 is a conventional day rate calculation, but 1/365 is also used. Ideally they should have a policy, but the law is pretty vague.

What do they use for other purposes, e.g. calculating holiday or sick pay etc?

I think they can offset the SMP, and that payment is at the employer’s discretion.

That is one way to calculate day rate and I believe they can just top up the smp.

Other calculations of day rate are annual/260 and annual/365. Or monthly/working days in the month.

Your employer is using monthly/calendar days in the month.

I would suggest checking any policy/contract/employee handbook to see if it mentions how they calculate day rate.

They can and usually do offset the SMP but they way they have calculated the day rate sounds wrong. It would usually be salary / 52 / weekly contracted hours.

Thanks everyone!

I’ve quoted the government guidance on SMP not being taken into account for NMW - because without the SMP, the day rate is below. They’re still holding fast that they’re right 🤷‍♀️

I’ll contact ACAS and a maternity rights charity tomorrow and feedback anything I find out 👍

My company is huge, so it’s probably right but really disappointing and I think it’s pretty naughty of them.

I also calculated the daily and hourly pay bout they just ignore this and say that they’re right.

I’m now speaking to a team leader in HR as the previous person just kept closing down my query with ‘this is the way we calculate it’ and ignoring links I sent to gov.uk and ACAS questioning it. They’re still adamant that they’re right. Very frustrating!

Oh, nothing in policies about how they calculate pay for KIT days.

Will check other policies and see - thank you 😊

Hi, did you ever get to the bottom of this as I’m having a similar issue with them deducting the smp which then leaves me with less that minimum wake if not taking the smp into account.

@KIC12 I didn’t spot the original thread but I can say this is likely to be unlawful. I can help but need some info.

1. do you normally work full or part time?
2. what are your weekly and daily hours?
3. what are full time weekly and daily hours ( only if you work part time)
4. if you work part time what days?
5. what is your FTE salary? You can leave this out or give me a rough guide and I will write out the calculations.
6. How many hours did you work on the KIT day.

https://maternityaction.org.uk/advice/keeping-in-touch-days/

Looks like payment terms should have been agreed in advance as there's no standard way to get paid for them

In my case (original thread) it was correct. I ended up having HMRC investigate and they initially agreed it was wrong but then on further investigation, it was legal. Very poor form as I was not paid my full, usual wage BUT not illegal. Definitely worth speaking the HMRC of you think it’s not Min wage though, they were really helpful.

Basically, the takeaway is clarify what they’ll pay you before you agree to work a KIT day.

@KIC12 if you are paid less than NMW it is unlawful.

Full time salary £25,000
Full time hours 37.5
KIT day worked 7.5 hours
£25,000 / 12 / 30 = £69.44 per day which when divided by 7.5 hours = £9.26 per hour which is below NMW.

Full time salary £30,000
£30,000 / 12 / 31 / 7.5 = £10.75 which is only just over NMW of £10.42.

If you work compressed hours e.g. 37.5 over 4 days and work 9.375 (23 minutes) on your KIT day it’s even worse.
£25,000 / 12 / 30 / 9.375 = £7.40 per hour
£35,000 / 12 / 30 / 9.375 =£10.37

Part time 3 days a week
£25,000 / 5 x 3 = £15,000
£15,000 / 12 / 30 / 7.5 = £5.55 per hour
£50,000 / 5 x 3 = £30,000
£30,000 / 12 /30 / 7.5 = £11.11

There are so many women being paid less than NMW for KIT days who are brushed off by HR/payroll because they don’t do this simple calculation.

Note: True hourly rate is calculated one of 3 ways
salary / 52.2 / 37.5 = £12.77
salary / 261 / 7.5 = £12.77
salary / 1966.69 = =£12.77

NMW is always by monthly pay period so a 31 day month can have 23 working days.
£25,000 / 12/ 23 / 7.5 = £12.07 per hour.

Note: When you leave an employment and are paid for untaken annual leave many employers pay using 365 which is a rip off. Always ask for 260/261 days.

Your day rate salary should be your annual salary divided by the number of working days in the year. If you normally work 5 days a week and get 28 leave days per year including bank holidays (the legal minimum) there are 233 working days in the year so your daily rate should be 1/233rd of your annual salary.

Yes you shiuld fight this. They are exploiting you while you are vulnerable.

@OlizraWiteomQua thats an interesting calculation, can you provide a source?

The reason for asking is that would mean you earn more than your salary. For example £25;000/233 = £107.29 per day but an employee is paid normal remuneration for 28 days leave so 233 days + 28 days leave @ £107.29 = £28,002.69

I mean that a normal employee works for 233 days a year (365 - 52 weekends - 28 days holiday) so each of those days realistically earns 1/233rd of the salary

@OlizraWiteomQua nice theory but I would be surprised if any employer uses that calculation.

@Sisterpita probably true, but given that there's no legal definition, fighting for the absolute most favourable possible version of the potential calculations will likely result in a compromise that is basically acceptable. If negotiation starts with the person taking the KIT day already choosing a less-than-optimum compromise as their starting point, the conclusion post-negotiation will definitely be something worse than that.

@OlizraWiteomQua there is case law around calculating pay. Hartley and others v King Edward VI College,

This case is relevant because if you argue for a pay rate of 1/233 for a KIT day this rate is also used to calculate the deduction of a days pay for strike days, unpaid leave etc.

My calculations are about illustrating the flaws in the Hartley and others v King Edward VI College Supreme Court ruling to show that 365 can inadvertently breach NMW regulations.