Redundancy and SMP entitlement

[Vishepp]

I am pregnant and being made redundant (though have been given the option to take VS) and am working out my three months notice. I think my employer should be pay me SMP, as I meet all the criteria set out in the Government advice (over 26 weeks continuous service; earning above minimum threshold; will be working during my 'qualifying' week for SMP).

However, today they have told me they don't legally need to pay it as although I will be working during my qualifying week (ie. 15 weeks before my due date), I have been served my notice before this date. To quote my employer's interpretation of the law "The legal position is that an employee must have reached the 15th week before the EWC at the point that she is served with notice of dismissal (not by her final working day"

I think this is wrong. I can't find anything online about the deadline relating to notice of dismissal it all just seems to talk about 'being in employment' . If I'm working out my notice, I am still technically 'in employment', right?
Can anyone help/advise me? I don't want to make a complete fool of myself fighting this in case I have missed something in the law ....

(nb. the redundancy is nothing to do with my pregnancy as work were not aware of my pregnancy so can't make any appeals on these grounds!)

Huge thanks for any help

They are talking rubbish. The conditions for SMP are as follows:

"a)that she has been in employed earner's employment with an employer for a continuous period of at least 26 weeks ending with the week immediately preceding the 14th week before the expected week of confinement but has ceased to work for him, wholly or partly because of pregnancy or confinement; .
(b)that her normal weekly earnings for the period of 8 weeks ending with the week immediately preceding the 14th week before the expected week of confinement are not less than the lower earnings limit in force under section 4(1)(a) of the Social Security Act 1975 immediately before the commencement of the 14th week before the expected week of confinement

That's the wording of the relevant piece of legislation. Continuously employed for 26 weeks by the qualifying week and earning enough. That's it. There is no exception made either in the original legislation or by subsequent amendment stating that women in their notice period are not entitled.

I would suggest writing to your employer, quoting that legislation, and asking them to point to where it says there is an exception made for women in their notice period at the qualifying week. Then suggest they telephone the HMRC helpline to confirm your entitlement.

Also refer them to this official technical guide to maternity benefits which confirms that even if you leave employment during your qualifying week, you are still entitled.

If they are saying the legal position is different they need to provide evidence of that.

Hi, thanks loads for your response-its really helpful. It confirms my initial response and also what Revenue and Customs Statutory payments team have since advised me. And my union. I have written to HR to ask them to clarify this misunderstanding. Would like to think its just an innocent mistake but suspect, as they are making mass redundancies at the moment, & treating all affected staff quite badly, it might be more calculated than that! Ive yet to get a response from them.....

Thanks again

I think it probably isn't calculated to be honest. It's the sort of thing that might be got wrong rather than deliberately refusing to pay, partly because its easy for you to complain to the HMRC disputes team -easier than having to bring a tribunal claim. I imagine they thought it was fine and will be peeved when they check and realise its not.

Hello, me again! just to say that my employer did back down and admit that they do owe me SMP (which was a relief). But now I have another query - is my work still required to pay childcare vouchers for me on top of my SMP? I know they are required to do this for any 'normal' employee on SMP, but as I won't technically be working for them when my SMP payments start, I'm not sure if this also applies to me. As before, I would like to be armed with some facts before contacting Payroll about this.....

I have been paying the maximum amount (£243) into the childcare scheme as a monthly salary sacrifice for the last couple of years.
Thank you!

No, you are only entitled to contractual benefits while you are employed, same as you don't continue to get holiday or other benefits once you've left employment.