Hi - I had the same problem 18 months ago, and thanks to the fantastic advice (and pep talks) on MN, I managed to get all the deductions back and of course the CCVs.
I've copied and pasted some bits out of the correspondence with my employer I had regarding that matter, I think you probably need to tweak it a little bit to your own situation.
Also, what really helped in my case to make them pull their finger out was that I contacted the HMRC dispute resolution team (or whatever they're called, google is your friend). HMRC are very interested when an employer deducts stuff from SMP and will first do a friendly phone call, and if that doesn't help raise a formal process.
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Dear HR
The Sex Discrimination Act 1975 (Amendment) Regulations 2008, confirms the right to continuation of receipt benefits during maternity leave. HMRC clearly defines childcare vouchers as non-cash benefit and it stipulates that no deductions can be made from SMP. In the light of this, any deductions from SMP made for childcare vouchers made is discriminatory. (Please see relevant documents quoted at the end of this email )
Please resolve this and pay back all of the wrongful deductions by xyz, otherwise I have no choice but raise a formal grievance.
HMRC Guidance on Statutory Maternity Leave - Salary Sacrifice and Non Cash Benefits www.hmrc.gov.uk/employers/sml-salary-sacrifice.pdf, a copy has been attached to this email)
Page 5
No contractual agreements can exclude, limit or otherwise modify SMP payments due. Therefore any SMP payable must be paid in full and in cash, for up to 39 weeks, regardless of any contrary contractual arrangements. In particular, the SMP payable cannot be further reduced by the terms of a salary sacrifice arrangement
Page 7
It is not correct to make deductions from SMP to reflect salary sacrifice arrangements. Salary sacrifice is not a deduction - it is simply the term used to describe a change in the contract between employer and employee. Essentially the amount sacrificed through the change reduces the amount of contractual pay the employee is entitled to be paid. (These reductions are sometimes shown on wage/salary slips - to record the amount of wages/salary to which the employee has ceased to become entitled. These entries on the payslip can be misleading ? they suggest that the amount of salary sacrificed is a deduction from pay. It is not.
Page9/10
Misunderstanding: employers sometimes believe that salary sacrifice is a ?scheme? designed to enable an employee to purchase benefits from their employers by paying for them directly through sacrificing some of their cash salary.
Comment: salary sacrifice is not a method by which an employee ?pays? the employer for the non-cash benefits they receive. A remuneration package may contain a number of elements. A common arrangement is set out below:
o Salary or wages
o Car provided by the employer and available for the employee to use privately
Statutory maternity leave ? salary sacrifice and non-cash benefits
o Private Medical Insurance
o Childcare vouchers.
Each element stands alone. The benefits are all provided by the employer as a way of rewarding the employee. This is specified in the contract of employment. But even though the employee may agree to reduce the amount of cash wages in order to receive childcare vouchers, for example, there is no legal connection between the two. The contract simply specifies that the employee is entitled to receive an amount of salary and the provision of certain benefits.
Page 13
What must the employer continue to provide to a woman when she is on statutory maternity leave, as a result of these changes to maternity leave legislation?
Employers must continue during AML (as well as OML) to provide any non-cash benefits that they have agreed to provide as a term of the employment contract.
These non-cash benefits are what she is entitled to under her contract of employment, apart from sums payable by way of monetary wages or salary. These non-cash entitlements would include:
o company cars, mobile phones, living accommodation or other assets provided to the employee for non-business use, without being transferred to the employee;
o medical / dental / critical illness / travel / car insurance provided under company insurance policies; employer-provided health checks;
o non-cash vouchers, such as childcare vouchers which can only be used by the employee for qualifying childcare and are not transferable;
o the right to accrue contractual annual leave (employees are already entitled to the statutory minimum amount of annual leave per year, regardless of whether or not they take any maternity leave).