Deduction from SMP, help!

[WidowWadman]

Apologies for starting a new thread, but the last one's title (How much time do I give them) is a little bit non informative.

I've just dropped down from CMP to SMP and they have deducted childcare vouchers from me. I've queried this and got the following reply.

"The sacrifice & repayment elements have to stop when she goes onto SMP only (because you cannot sacrifice salary if your pay is below a certain limit). As per below this has been stopped for widowwadman.

2. Payment into her childcare voucher provider account account

The childcare voucher deductions which are paid over to childcare voucher provider on her behalf continue as long as her net pay is enough so that the deduction can be taken. As per below this has continued for widowwadman.

If she wants the childcare voucher deduction (i.e. no payments made to her childcare voucher provider account) stopped when she goes onto SMP only, she'd need to instruct childcare voucher provider to instruct us to cease the payments."

Surely it can't be down to me, can it? I'm not working for an SME, quite the opposite.

I want to respond to it, but am worried about hitting the wrong tone, not getting it right.

I had sent them this link plus a link to maternity action's guidance, which they either haven't read or chose to ignore

ACAS are as useless as ever told me they don't deal with childcare vouchers. Currently on hold to HMRC, who hopefully can say something about it.

Great, just missed the statutory payments team's office hours due to having been hold for approximately six months to another part of HMRC.

:(

Ah, got through to somebody on the employee helpline. They told me to "talk to your employer and ask them to ring the employer's helpline". How can I know whether they'd really do it, when they don't read the guidance in the first place.

Basically I'm being told "we don't provide them as a non-cash benefit, but just enable you to buy them through us so you can get the savings". (That's what I'd been told verbally). They can't decide that like that, can they?

I had to cancel my vouchers and had to do so a certain number of weeks before going on maternity leave as it affects your pay. My understanding is that it's the employees resonsibility (certainly is where I work). Hope you get it sorted but if not you can save the vouchers and use them when you return to work.

AFAIK you should continue to get the vouchers without anything coming off your pay. That is why it is a toss up - stay on them, have lower mat pay but get the vouchers "free" while you're not being paid, or come off them and get higher mat pay.

My company doesn't pay towards them just allows us to in order to get the tax break, so the vouchers are simply what I pay in - probably different if the company pays in too.

yes but its classed as a banefit as a result of salary sacrifice and should continue when the OP is on ML - if Iunderstand correctly they have been deducting the cost of the vouchers from her SMP!

I have just returned to work after my maternity leave. Once my CMP ran out I was on SMP. At that point I received SMP plus my vouchers. My employer was obliged to buy them for me as they could not deduct them from my statutory amount. Initially they did and realising their mistake reimbursed me with an emergency payment. The following month it was all correct through payroll. Apparently the law changed recently obliging them to do this. Hope this helps.

PrincessScrumpy - that's what our payroll department said - however according to HMRC that's wrong - they can't just decide that the rules don't apply to them.

Still waiting for them to come back to me. I've emailed them the relevant documents twice now. With quoting the exact parts which apply. Ho hum. I reallly want to solve this informally and not have to faff around with grievances.

Thanks for all your replies, everyone.

Btw it's been the law since 5th Oct 2008.

Thanks - still no response from work.

I've got a reply now - referring me back to company policy. . I could actually cry

It's going to have to be a grievance. They realise they are not allowed to deduct from SMP, is that right? That's fine, but separately to that, failure to continue to provide contractual benefits, which include childcare vouchers (regardless of the fact that you have sacrificed some of your salary in order to receive those as a benefit) for the duration of your maternity leave is illegal discrimination. I think you need to do a formal grievance and draw their attention to the fact that it's illegal discrimination under the Equality Act 2010 in order to prompt them to consult a lawyer.

Well, they have deducted - but told me that's because I instructed the voucher provider to take payment so this would be from my gross pay. In their view I have misunderstood the guidelines.

"In widowwadman's employer's Treatment of Benefits Guide it states that "When Maternity Pay
falls below the National Minimum Wages, Child Care Vouchers
will cease."

This is referring to the salary sacrifice scheme, which has ceased in
this case.

The deduction on the payslip is a separate issue - it is the net pay
that we have been instructed to pay by widowwadman to her account with
childcarevoucher provider to pay for her child care. If she no longer requires this to
be paid to her account with childcare voucher provider, then she needs to instruct them
to notify us that this should cease."

I'm onto this now - once I get hold of an actual copy of the grievance policy. My worry is that the answer to the grievance will still be the same. From how I understood the guy on the phone they have not even contacted HMRC, but just looked at the guidance and decided that it doesn't apply to them. HR have closed my query as it's a "payroll issue"

How on earth am I going to afford a lawyer?

You don't need a lawyer yet. Honestly. I am talking as someone who spent 8 months trying to get her holiday sorted out with her former employer despite links to the relevant legislation and having an HR remit in my job. The eventual grievance hearing was "Sorry, we got it wrong. Yes you can have your holiday". It turned out that all the people who said they'd checked hadn't.

Do try think of this as a paperwork issue and treat it as such. It's not personal although it feels very, very personal. Are you in a Union? Sorry I forget.

I meant to say I just wish I'd raised the grievance months earlier.

Thank you, without advice on here I'd probably just cave in. Wonder how many have before me. No I'm not in a union.

Really nervous now - I've just talked to a lady on HMRC's statutory payments dispute team and she said she had to look the bit about the childcare vouchers up, as she's not familiar with this - if it really was so clear cut, she would be familiar with it, surely?

You've not had many dealings with HMRC then?!

You'd think two HR professionals with CIPD accreditation earning over £50,000 per year each would have been able to read about the holidays (also a benefit) but no... apparently not!

Seriously, don't panic or worry. It will get sorted.

Ah, so it was my wrong to assume that the disputes team would be familiar with common disputes. I've given her a link to their own guidance just in case.

I can't cease to be amazed how difficult they make it, so it's reassuring to read of your holiday issue.

In terms of the not deducting from SMP thing, that's not an optional 'if the employee actively requests it' thing; it's nothing to do with either you or the voucher company. There is a legal requirement that the employer does not deduct from SMP, so as soon as you went on SMP your payroll dept should have automatically stopped deductions. It's nothing to do with minimum wage or anything. As the HMRC guidance says, they cannot deduct from SMP. Simple as that.

You don't need a lawyer as Kate says. Raise a grievance, and point out the relevant bits in HMRC guidance saying they are not allowed to deduct from SMP and that benefits such as vouchers must be provided throughout mat leave anyway. Also point out that women on maternity leave must be provided with all their contractual benefits throughout mat leave and to fail to do so is illegal discrimination.

If you put it formally, mentioning discrimination, and highlighting the HMRC guidance they are far more likely to check it out properly, which clearly thus far they have not done.

It's highly unlikely it will get to the stage where you actually need to make any kind of legal claim.

flowery - thanks for your input - I'm hoping you're right - and will report back how the saga continues. I wonder how many people before me have just given up by that point.