Re-posted from Chat - Employment/maternity issue

[PetShopGirl]

Can anyone help with this, or suggest how I might play it? I think I know deep down that I don't have any legal leg to stand on, but I do wonder whether I might have some moral ground to appeal to the better nature of the powers that be...

I've been working for the same public sector organisation since September 2009, although until March of this year I was actually a temp working for a recruitment agency (basically because of the blanket freeze on recruitment in the public sector since the general election). Since March I have been on a short term temporary appointment, pending permanent recruitment of my post so am now technically an employee.

The job is now due to be advertised externally, and obviously I am very keen to apply. My manager has also made it clear that they want me for the role. However, I am currently 15 weeks pregnant and have got myself in a bit of a stew about potential maternity benefit. The maternity benefit offered to employees of the organisation is extremely generous, but according to the staff handbook you need to have been 'in service' for a year at 15 weeks before the expected week of childbirth (which for me would be 19th August). Obviously, since I have only technically been an employee since March 2012, I won't qualify for this benefit. I am finding this quite galling as I will have worked (bloody hard!) for them for three years by this point, and I certainly feel as if I have been 'in service'.

Assuming I get the job, do you think I might have a leg to stand on in terms of arguing for me to receive the full benefit? Or I wondered whether it might be better to try and negotiate as a specific contract term if I am offered the job (again, assuming). Obviously I also don't want to do anything that might jeapardise me getting the job in the first place!

It would make such a massive difference to our finances, as I would be entitled to six months full pay followed by 23 weeks SMP under the organisation's terms, as opposed to two weeks full pay and then basic maternity allowance for (I think) six months. Plus it just seems really unjust when I have certainly put in the time, not to mention the fact that people who have worked there less time than me, but are permanent employees, would be entitled to the full benefit.

I'd be really grateful for anyone's thoughts.

Not an expert, but would you be able to agree that the 'effective' date of employment on the contract was earlier? I have worked with companies where, say, the person who started the company never had an employment contract but once things were getting formalised, he/she got a contract that backdated their start for the purposes of continuity of employment.

The alternative is to do as you suggest and negotitate it as part of your personal 'package', which they may prefer as it sets less of a precedent (you might consider giving up something else in another area as part of this negotitation).

Prior to March how were you employed? Were you working for an agency? Or on fixed term contracts with your current employer?

From September 09 to March 12 I was employed by an agency (although had virtually no contact with them for the duration).

What's so frustrating is that everyone (ie senior management) has wanted to recruit permanently to the role for the last 18 months or so, but it just hasn't been possible because of government restrictions. So it's not like I had the opportunity to apply but didn't take it.

Do you think there's any way I could use the 'in service' wording in the staff handbook to my advantage? I don't know what I've been doing for the last few years if it hasn't been 'serving' the organisation.

In that case no, I don't think you have any claim. You could ask if there is any possibility of making an exception but i'm not sure how well this would be received, particularly as depending on your start date and when you conceived you may not be entitled to SMP which they would claim from HMRC to help make up some of your maternity pay.

Plus they will have been paying agency fees for the last few years so they have already incurred a lot of cost in employing you.

I would think they will insist on sticking to the rules. It may feel unfair but it isn't really.

Hmm, I thought that might be the case. I do think it is unfair though. I showed them a lot of loyalty for two and a half years in the face of no pension, benefits, sick pay, rubbish holiday entitlement etc.

Plus, without wanting to drip feed but it's only just occurred to me, I was offered another job a year ago and was persuaded to stay with a personal guarantee from the chief exec that I would be put on a short term appointment as soon as possible (together with a payrise). As usual in the public sector things got pushed back and back, which was irritating at the time but obviously I didn't know when/if I would be getting pregnant or whether it would even work out if I did (I have a pretty grisly obstetric history). Obviously I'm thrilled that things are looking okay so far in relation to this pregnancy, but now all this job stuff just seems like one more smack in the face after a difficult few years.

And I know some of the dodgy things that do go on in the organisation, so I know they're not averse to bending the rules when they want to...

You should have had same pay and holidays as permanent employees from at least last October when the agency worker regulations came in.

The key thing here is that you were not an employee so you're not entitled to anything. I know it feels tough but nobody forced you to remain as an agency worker - you could have looked for other work. Presumably there are reasons why you did not.

Congratulations on your pregnancy. I hope it all goes well.

No, you won't qualify as you don't meet the criteria and I can't think of any argument otherwise, sorry.

The Agency Working Regulations came into force Oct 2011, which try to protect situations like this, but even with this, they are not retrospective so you are not entitled to anything sorry.

Not that you'd get rights to benefits like occupational maternity pay or even occupational sick pay under the AWR.

i cant see that they will do that. the cost to the organisation would be mighty. additionally it wud give u rights re redundancies etc that would cost them and put u ahead of employees who have worked (not agency) for longer. and remember ur compnay has been paying the agency their cut for having you too.

i know its hard when you are agency and do the same job, been there. but then agency staff often get better pay (been in that situation too) so it swings and roundablouts and just depends on how it works out for you.

i think you are a bit unreasonable to ask for something that (whilst its hard to take) you are not entitled to.

Thanks everyone - although obviously none of this is what I want to hear!

So as things stand, if I were to be offered a permanent job in a few weeks' time, (therefore having just less than six months service by 19th August), would they still have to keep my job open whilst I was on maternity leave or would they not even need to do that?

You are entitled to take up to 52 weeks maternity leave from your first day. There's no qualifying period - it's a statutory right.

Maternity pay is different and does have a qualifying period even for statutory.

I think you should check your employment booklet for what they consider to be continuous service. If they don't count your time as an agency worker then you won't get enhanced mat pay but you can def still have the mat leave plus (i think) statutory mat pay. Hope they do make you permanent. I'm in an almost identical situation in civ service. But it's v early days for me so not going to stress about may leave yet. Good luck. X

All you need to know about maternity leave can be found here: www.direct.gov.uk/en/parents/moneyandworkentitlements/workandfamilies/pregnancyandmaternityrights/dg_10039631 and SMP entitlement here: www.direct.gov.uk/en/MoneyTaxAndBenefits/BenefitsTaxCreditsAndOtherSupport/Expectingorbringingupchildren/DG_10018741

Sorry couldn't do links earlier as on phone. Let me know if you need more help :)