Childcare Vouchers and Maternity Leave

[speedbird17]

Just trying to establish what I am entitled to as there is lots of advice contrary to what my employer is saying out there!

I am entitled to SMP only, so employer has stated I will be forced to suspend my vouchers until I am earning a salary again. It was flagged up to me by an acquaintance that their employer goes by HMRC rules that if maternity pay does not cover non-cash benefits such as childcare vouchers, a car etc that the company must carry on paying the amount on your behalf.

My employer has answered my query by stating that the class the voucher as a remuneration and as such will not class it as a non-cash benefit and will force me to suspend my participation in the scheme.

Can they do this? Is the information I have read on HMRC and other childcare trust sites etc correct? I am not wanting something for nothing, but if I am entitled to the payment it would greatly help to have it IYSWIM...

Any advice and info appreciated! Thanks in advance!

I think this question is often framed in the wrong way really.

It is very well established in law that a woman must be provided with all terms and conditions of her employment including contractual benefits throughout maternity leave.

It is also very clear in the rules about SMP that deductions in respect of salary sacrifice cannot be made from it.

With any of these things, if there are exceptions, those are generally easy to find. If an exception cannot be found to a rule, then the assumption should be that it applies.

So if an employer wants to either not provide the vouchers during maternity leave, or wants to make deductions from SMP to cover the cost, they should be able to point their employee to the relevant rule/case law specifying the exception that allows them to do that. Of course no one ever can because there isn't one. Instead employers just bully their staff into dropping the issue, which makes me angry.

Hopefully this recent case will reduce that. Although "Leading HR and employment law consultancy" Peninsula weren't withholding a contractual benefit or making deductions from SMP, rather were forcing women going on maternity leave to "agree" to come out of the scheme as a condition of being allowed into it in the first place, but it of course had the same effect, ie treating a woman less favourably as a direct result of her maternity leave.

And actually is worse IMO, as it is obviously a rule deliberately designed to avoid obligations. Many employers simply don't realise that they'll have to provide vouchers, and although that's obviously no excuse for failing to do so, it can come as a nasty shock, particularly to small businesses.

Thanks flowery - yep, I do feel in my case that I was bulled/emotionally blackmailed into dropping this (my boss talked of his sleepless nights over the issue and said that if I pushed it they would probably drop the childcare scheme for all employees). And while I do have sympathy that it was a shock for the company, I think £3K is a price worth paying for doing the right thing and wouldn't have bankrupt them.

Funny that Peninsula are a HR/employment law company! (My organisation is also involved in employee health/rights so makes it doubly shocking that they pushed me to drop this.)

Also said the test case is not an appeal so it doesn't set a precedent

Your employer doesn't appear to understand how precedents work in law.

A decision by an Employment Tribunal is binding on future Employment Tribunals where the facts of the case come within the scope of the principle of law that was decided. It is not, however, binding on the Employment Appeal Tribunal.

So yes, it is possible that the Appeal Tribunal may reverse this decision if someone takes a case that far. But if someone takes your employer to the Employment Tribunal on this point your employer will lose unless the Tribunal decides the facts of the case are sufficiently different to mean the precedent does not apply.

Thanks, looks like they don't understand precedents or how the law works.

His other argument was 'it's not fair, why should we have to cover this cost when we're such a small company?' - and then tried to get me to justify the law/guidance to him! When I quoted the HMRC, CIPD, test case etc, he just said - 'I don't agree - it's wrong'. When I said all my friends' employers provide this, he said 'well they probably work for large companies' - as if that was the deciding factor. I even suggested meeting halfway but that fell on deaf ears.

Anyway, have lost all respect for them as an organisation for not supporting me and pushing me to drop this. But equally it's not worth the stress to me at the moment. Feel like I've sold out but need to focus on pregnancy and finding somewhere to move to so just don't have the time or energy to fight it.

Really appreciate all the advice on here and hope other people feel able to push this if they're in the same situation.

I know this is an old post, but am curious on what the final outcome was OP?