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Original poster

Childcare vouchers whilst on Maternity Leave

30 replies

Tinker22 · 16/03/2013 11:06

Hi - I'm due to go on maternity leave in a couple of months and my employer have informed me that they are not going to substitue the payment of childcare vouchers whilst i am off work. Work only pay SMP so I will not be earning any money from which I can pay childcare vouchers myself. I was my understanding that your employer was not able to take away non-cash benefits which included childcare vouchers. I have been left with the option of raising a sex discrimination claim against work in order to get what I understand I'm legally entitled to.
Has anyone had any similar experiences to this or any further information on this topic?
Thanks B

OP posts:
Trazzletoes · 16/03/2013 11:11

I don't know what the law says, but when I was on maternity leave, stat mat pay, I still got my childcare vouchers so I assumed that you were legally still entitled to them.

MyNameIsAnAnagram · 17/03/2013 11:03

You are still entitled to them, I just had a fight with my work about this too. I will try and remember to pm you the evidence I used to get them to agree, when Im back in work on Tuesday.

BikeRunSki · 17/03/2013 11:08

You are still entitled to them, even during the period of unpaid maternity leave.

Blankiefan · 17/03/2013 18:36

They are a benefit and you are entitled to your benefits, even if not your salary. For example, if you had a company car, that's a benefit and you'd be entitled to it even if they aren't paying you salary.

Try ACAS or CAB. It won't make you popular but if you challenge it, you may help others as well as yourself....

Original poster
Tinker22 · 17/03/2013 19:51

Thank you everyone. If you could pm me the info that would be fantastic. X

OP posts:
BikeRunSki · 17/03/2013 22:24

There is info on the HMRC website, it's a pdf (so can't link) called something like "maternity leave and salary sacrifice".

baffledmum · 18/03/2013 13:55

Is it just CCVs you use salary exchange for or do you use it for other benefits?

In relation to the CCVs your employer is in the wrong. Remuneration may be made up of several elements and in your case, unless you elaborate further, your package is made up of cash and then your non-cash benefit of CCVs. By law all non-cash benefits must continue for up to 52 weeks of mat leave and where there is insufficient salary to deduct from the employer meets the cost. Be aware though, they may deduct from payment received for KIT days if you do any.

Do you work in the public sector by any chance?! Public sector employers appear to think that they have a lot of wriggle room, whereas private sector ones appear to know it is incorrect to try to make an employee come out of a scheme but they still have a go anyway.

Google Lewis and Silkin salary exchange and quote from that if need be!

BikeRunSki · 18/03/2013 18:34

I work for a huge public sector employee and they were exemplary re: mat pay etc. They had to convince me that they would pay CCVs when I was on SMP!

baffledmum · 18/03/2013 20:29

If your employers are going to pay for your CCVs while you are on SMP then that is the correct thing to do. I am confused now. Your OP suggested you thought otherwise... Can you clarify for me?

Original poster
Tinker22 · 19/03/2013 10:25

Sorry if it wasnt clear. They are saying they do not have to pay me CCV whilst on maternity leave. Even though all research suggests they do. Including your really helpful link. They are also saying that if they do have to pay me CCV then they will stop offering them. So if I fight for what I'm entitled to then I may loose the benefit for all. It's a private sector company with over 500 employees so they really should know better. I would love some case law to show them.

OP posts:
brettgirl2 · 19/03/2013 11:00

Thats very dodgy and dont let them pressure you.

I dont think they even end up worse off if you consider the pension contributions bonuses etc.

flowery · 19/03/2013 11:53

Have you given them the official HMRC guidance on maternity leave and salary sacrifice? You don't need case law on this, because it's not controversial.

The law says that contractual benefits must continue to be paid to a woman for the duration of her maternity leave. This is not remotely up for discussion or in need of case law to demonstrate.

HMRC says that salary sacrifice payments cannot be taken from SMP. Again, this is not up for debate in any way.

On what basis are they saying they don't have to provide the vouchers? Are they claiming they are not a contractual benefit? What's their justification?

Original poster
Tinker22 · 19/03/2013 12:13

They are not providing me with any information to say why they don't have to payConfused. I showed them the HMRC info and they said it was an employment law matter!! I currently pulling together a letter with all the info to present to them and asking for evidence from them as to why they think they don't have to pay.

OP posts:
flowery · 19/03/2013 12:58

Yes it is an employment law matter and a statutory payments matter. HMRC specifically state that deductions cannot be made from SMP because that is their remit. In their guidance they also remind employers that contractual benefits including childcare vouchers must continue to be supplied in accordance with existing employment legislation.

Refusal to provide contractual benefits is illegal discrimination, and unless they are also refusing to let you accrue holiday during maternity leave, presumably they do not dispute that? Assuming they accept that they need to provide contractual benefits throughout maternity leave, the onus is therefore on them to provide evidence that childcare vouchers are an exception to that law.

Original poster
Tinker22 · 19/03/2013 13:07

No they are not disputing anything other benefits just the CCV. It's so frustrating.

OP posts:
flowery · 19/03/2013 13:09

Ok, then they accept the law, so must now provide evidence that childcare vouchers are an exception to that. Which they won't be able to.

baffledmum · 20/03/2013 19:39

Your employers are very wrong here as Flowery says. Under your scheme you will have given up an element of your salary in return for the CCVs. This makes your CCVs a non-cash benefit and all non-cash benefits must be maintained throughout mat leave. Your employer may deduct from any enhanced occ mat pay or payment for KIT days but once you are on SMP then they must fund the cost directly. I consider their suggestion to stop the scheme to be blackmail. Perhaps put it to them in those terms....

They cannot encourage or comple you to come out of the voucher scheme while on mat leave.

As Flowery writes above, the onus is on them to demonstrate that CCVs are a cash benefit which they aren't. Can you print this thread out and show it to them, simply blanking out our user names??? Smile

Original poster
Tinker22 · 22/03/2013 14:30

Well I have contacted HR again updating them with all this information still on an informal level. It will be interesting to see what the response is. I shall keep you updated.

OP posts:
Original poster
Tinker22 · 02/04/2013 15:14

Still no luck so having to progress it as a formal grievance. They have even stated they are not paying the CCV following legal guidance. Can't believe I have to fight for something I'm entitled too. Doesn't make for a pleasant work atmosphere.

OP posts:
Stevie77 · 02/04/2013 15:52

Can I ask - if the employer is supposed to cover the cost of CCV during mat leave (meaning SMP), are they allowed to claw back the equivalent once the employee returns from mat leave? What if the employee doesn't return to work after 52 weeks?

flowery · 02/04/2013 16:00

Sorry you're having to progress formal grievance Tinker22, that's a shame. Hopefully that will do the trick though.

Stevie no an employer can't claw back the cost of CCV or any other benefit they have had to provide during maternity leave.

Stevie77 · 02/04/2013 16:11

Good to know! Thanks Flowery Smile

OneHundredSecondsofSolitude · 02/04/2013 16:15

I had a similar situation

It resulted in my employer changing scheme provider and the new one included a clause in the small print that at any time earnings dropped below the minimum levels, ie on smp, or sick pay then an employee would agree to opt out of the scheme

If we didn't agree to the t&c's then we couldn't join the scheme. Bastards

Original poster
Tinker22 · 02/04/2013 19:09

I have a statement that during times when I do not earn enough eg SMP then no salary sacrifice will be made and no vouchers given. I have interpreted this as my position and the position of the company will be that they have to supplement the voucher provision. I think it's the HMRC website that says that no contract can override employment law. Is this correct?

OP posts:
baffledmum · 03/04/2013 21:37

If you have not opted-out of your salary exchange scheme e.g. under a maternity lifestyle event, then your employer MUST meet the cost of all non-cash benefits once you are in receipt of SMP. Non-cash benefits may include CCVs but also pension contributions, critical illness cover - whatever you exchanged salary for under your exchange scheme.