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Original poster

occupational maternity pay

11 replies

kateandjessicac · 15/03/2011 20:14

I am on maternity leave at the moment and will be made redundant on the 31st March. Pay roll have said that they will reclaim my occupational maternity pay as I will not be returning to work despite the fact they are making me redundant. Is this correct/legal?

OP posts:

RibenaBerry · 15/03/2011 20:34

It depends what the company policy says about maternity pay. It is only repayable if that has been clearly communicated to you in advance (normally in the policy) and that should also say the circumstances in which it is repayable. If the policy says it's repayable in any circumstances where you do not return to work for a set time, and you're not returning, then unfortunately yes, they can reclaim it. However, it's pretty mean and most employers would waive it on a redundancy

prh47bridge · 15/03/2011 23:26

I would check your terms of employment very carefully. It is not your choice that you are not returning to work. A policy that says you have to return your occupational maternity pay if you choose not to return to work should not apply here. If you are unsure consult a solicitor who specialises in employment law.

flowery · 16/03/2011 09:25

What exactly is the wording of your maternity policy/letter/contract regarding repayment kate? Very stingy to reclaim it in those circumstances as Ribena says, but whether they can might depend on the exact wording.

Original poster

kateandjessicac · 17/03/2011 12:43

Thanks everyone. I checked the policy and there was nothing clear in it. also looked at my contract and again it wasn't clear just that to get it I must return to work for at least 3 months. Again this is impossible when you're made redundant.

On another note, they are not paying me for my missed holidays as I now cannot take them either.

Also, when I'm made redundant am I still classed as being on maternity leave or do I become a job seeker - I have no intention of starting back so soon but not sure what I have to do. Any help?

OP posts:

EssexGurl · 17/03/2011 12:47

Legal advice I have always had in the past was that if the Company is not allowing an employee to return to work for reason of redundancy, then any additional payments should be honoured. We paid a "return to work" bonus during the first three months. When we made people redundant whilst they were on leave, we paid this money out to them on termination (less normal deductions).

Argument is that the employee is not allowing the employee to return. If the employee chose not to return then any additional monies would be forfeited.

RibenaBerry · 17/03/2011 13:07

Essex - that advice must have been based on your company's specific maternity policy. There is nothing in law that says that, if you are not allowing the employee to return, you have to make the payments.

Kateandjess - what exactly des the policy say, can you quote the wording about neediing to return for three months? As prh has said, there is likely to be a very fine distinction based on the wording - so for example if it refers to choosing not to return, you can argue it wasn't a choice. If it simply says "if you do not return" they may be able to reclaim it.

KatieMiddleton · 17/03/2011 13:31

Just wanted to add they must pay you for any holidays acrued but not taken when you leave.

Is it whole department/site being made redundant or just you/select few? That might give you some bargaining power if your contract is woolly.

flowery · 17/03/2011 13:59

Yes you get your holidays up to your leaving date.

In terms of whether you are classed as being on maternity leave or a jobseeker, that's really up to you. Obviously to claim jobseekers allowance you must actively be seeking work, so you won't be able to claim that until you are ready to go back. You still get SMP from your ex-employer anyway until the 39 weeks are up.

prh47bridge · 17/03/2011 14:35

I agree they must pay you for holidays accrued but not taken at the leaving date. If they are saying they won't do that it strongly suggests they don't know what they are doing. Which in turn increases the likelihood that they are getting the maternity pay wrong. But it would be really useful to know exactly what the relevant parts of your contract and the company policy say.

Original poster

kateandjessicac · 19/03/2011 15:13

Hi, they are now honouring the payment for untaken holidays.

Spoke to a solicitor who told me not to sign the compromise agreement as there is no mention of maternity pay they should be honouring. So back to them and their legal team.

The wording for occupational maternity pay in the policy says:

If your circumstances change and you do not return to work immediately following your maternity leave, we will recover the pay paid to you.

The condition for occupational maternity pay is paid on condition that you return to work for 3 months, straight after your maternity leave.

No where in the policy does it mention redundancy and occ pay just that they will consult with me throughout the process.

Cheers everyone - it's very stressful!

OP posts:

prh47bridge · 20/03/2011 15:20

My immediate reaction as that this is very badly worded. If you simply decide not to return to work you could argue that your circumstances have not changed and therefore, interpreting this strictly in accordance with the wording, they cannot recover the pay! And the paragraph starting "The condition for..." isn't even good English!

If they are putting forward a compromise agreement and you have a solicitor involved that is the correct place to get advice. Hope you end up getting reasonable compensation from them.

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