Alabaster and NHS maternity pay

[EvieMom]

Hello

Looking for a wee bit of advice. I recently completed a clinical training programme in my NHS trust where I was employed by the trust and paid at a Band 6 for 3 years. This finished in May this year and I successfully gained a post in the same trust as a qualified clinician at a band 8a.
I fell pregnant last Christmas and my baby arrived early on Aug 16th, though she was due Sept 10th.
I was led to believe from my trust's maternity policy that I would receive full pay for 8 weeks and then half pay topped up by SMP for a further 18 weeks.
I was under the impression after looking at various sources that my mat pay would be recalculated based upon my new salary increase. I qualify for continuous service and therefore occupational maternity pay.
I was dismayed to find I received mat pay based upon my old band 6 pay that I received as a trainee. When I queried this I was told that average pay is calculated based upon the 8 weeks prior to the 15th week before my expected due date which falls across the last weeks I was earning a trainee wage.

I raised that I felt this was discriminatory as I am being essentially held back from receiving the pay I would be getting had I stayed at work or if I go back. I quoted the Alabaster ruling, but they stated that they will honor the 3% pay rise offered by the government to all NHS staff, plus my annual increment which would have been due in September when I was a band 6, but not the promotional pay rise up to band 8. They claimed this pay rise did not qualify 'under the conditions of being a pay award or increment'?

I can't believe this is right, someone in my HR department emailed to say I was right and should be retrospectively paid, but then they were overruled by senior staff in HR and payroll. My maternity policy does not mention the average pay calculation anywhere and how it is worked out, it just talks about receiving full pay for 8 weeks etc etc.
ACAS seem to think I have a case but were unsure about the specifics and whether a pay rise related to a promotion following qualification would be included under the Alabaster ruling.
Any advice would be appreciated. I feel foolish as we moved house based upon my expected salary and this means I will have to return to work as I cant sustain us on my old band 6 wage. The difference is quite a bit (£20,000) which in mat pay terms works out a good £1000 a month extra for the first 8 weeks and almost £450 for the following 18 weeks. I can't believe this is fair and legal, especially having had a wee look at the equality act and the equal pay act.
Anyway they are sticking to their guns and it looks like I will have to go back to work. My wee one is just 8 weeks, she stopped growing at 33 weeks due to complications and we are in and out of the hospital for various reasons with her. I can't bear the thought of going back yet but I am the main earner in our household, unless we move house again which would be the only other option.

If anyone has any ideas or advice I would be so appreciative.

Best wishes x

When did you start on the band 8? Was it before, during or after the calculation period for SMP?

What does your enhanced maternity pay policy say?

Hi, thanks so much for your reply,

It was pretty much the week after the caluclations for smp were made. The first week in May was my first week in the new role.

The enhanced policy just says that I am eligible for occupational mat pay due to continuous service and that I will receive 8 weeks full pay, and 18 weeks half pay plus smp. It does not state how this will be calculated although I believe from a generic NHS handbook it is calculated the same way as SMP therefore subject to alabaster ruling.

Again this is not explicit in my trust's policy.

Thanks

X

www.shoosmiths.co.uk/client-resources/legal-updates/pay-rise-increase-rate-maternity-pay-13767.aspx

I am not aware of anything in the Alabaster ruling or case law since which says there is an exception and the ruling doesn’t apply if the reason for the pay rise in question is a promotion. The reason for the rise isn’t relevant.

I work for the NHS. On 3rd Mat leave.

There is a qualifying period, I think weeks 15-20 but may vary with type of contract, from which your mat pay is calculated.

This is actually something unions fought for to ensure that if you have to go part time/flexi late in pregnancy, this doesn’t adversely effect your pregnancy.

I have seen people benefit excessively from this -e.g. a massive locum or other extra cane through in the qualifying period- but some will feel they missed out if it fell before a big pay rise. However for the majority it seems to work out fair and equitable.

If you are being paid according to the stated qualifying period I don’t think you can do much, but take advice from your union.

Sorry ...doesnt adversely effect your maternity pay*

Just checked with my union on line. For all Agenda for Change staff the qualifying week is the 15th week before EWC. Pay is therefore based on that.

But surely this doesn't make sense under the Equal Pay Act and Equality act? That clearly states if you are awarded a pay increase any time between your qualifying weeks and end of maternity leave, you are entitled to have your maternity pay recaluclated to reflect that when it is related to your base wage (so would not count for overtime hours or bonus etc). Under the same ruling any enhanced maternity pay calculated in the same way as SMP is also subject to the same ruling. This is case law.

The Equal Pay act 2010:

Section 96 explicitly states that ‘Any pay increase a woman receives or would have received had she not been on maternity leave must be taken into account in relation to her maternity related pay’
footnote 35 specifically relates to the Alabaster ruling. As Flowery stated, no exceptions are made in terms of what qualifies as a pay increase/award/increments. This is reflected on the HMRC website under their maternity benefits section regarding SMP calculation.

What they have basically done is witheld a promotion (of sorts) because I had a baby. Which also contravenes the Equality Act in my eyes!

Aspegallus

Thanksso much for your advice, and for checking in for me.

So average pay is calculated based upon one week? My trust said they look at the two months prior to the 15th week. I understand this calculation, and how it is worked out for routine maternity pay but then surely in this case the Alabaster ruling applies? Which has also been written into the Equal Pay act and Equality Act.

I am very confused. It does not seem fair at all. Especially as none of this was reflected or made explicit in my trust's policy which just said 8 weeks full pay/18 weeks half pay etc. It does notnrefer to the caluclation or qualifying weeks at all apart from stating the qualifying week in relation to eligibility for enhanced pay.

Thanks again. Looks like I might be heading back to work sadly.

I can’t help you here I’m afriad.. but congratulations on completing the STP and congratulations on the new job

flowery I agree but I can’t find anything that says it definitively applies to occupational schemes as well as SMP. Although I guess it would arguable as sex discrimination? The nearest I found was that if the occupational scheme calculates eligibility in a similar was as for SMP then the Alabaster provisions (which I believe are now contained in regulations but I’m not at work to check) would apply.

Peanuttybutter

Awwww bless you! It was not easy in that last pregnant stretch!

Thanks for your kind words

Thanks Baked!

It would be odd if enhanced pay did not also reflect this as I would then be better off tamimg SMP at 6 weeks at 90% pay in the short term, so would be sacrificing pay to take enhanced pay? NHS enhanced pay is paid full pay for the first 8 weeks minus SMP, if SMP is recalculated at my band 8 but enhanced pay is not, then I would be deducted more (if that makes sense).

Also just to add NHS enhanced mat pay is calculated in the same way as SMP

”flowery I agree but I can’t find anything that says it definitively applies to occupational schemes as well as SMP.”

See what you mean, but as the reason is pregnancy/maternity discrimination, I think the employer should have to show why the ruling doesn’t apply to the occupational scheme, rather than the other way around. If there are exceptions to something in employment law, surely generally they need to be specified.

Alabaster only applies to SMP so they're not required to recalculate your OMP unless their policy states that they will.

I've just checked the NHS conditions of service for the wording and it states OMP is calculated using the average weekly earnings rules for SMP and then states that the exceptions to this are a pay award or increment, in which case they will recalculate the OMP based on the higher pay (which is in line with what they've told you).

Looks like they're acting in line with policy in respect of your OMP unfortunately. They do have to recalculate your SMP though as there are no exceptions made for the type of pay increase in respect of SMP recalculations - have they done this? It will likely only affect your first 6 weeks but given the numbers you've quoted I'd assume 90% of band 8 is higher than full pay at band 6 so you should still be due some SMP.

I have had 2 Mat Leaves under the NHS. Occupational Maternity Leave is always calculated in line with SMP and it's made quite clear in Agenda for Change documentation that the qualifying weeks align. They always use the 8 week period prior to the 15th week prior to expected week of childbirth (essentially weeks 17-25 of pregnancy), so many women take advantage and get in overtime during that pay window to boost their maternity pay.

I've changed my mind actually and agree with flowery - I think as they've stated they use the AWE calculations for OMP, there's an argument that the Alabaster recalculation forms part of the AWE calcs and that the recalculated higher AWE should therefore apply to the OMP as well.

Hi Nerdsville

Thanks for your reply! So you think it is down to the wording of the NHS conditions of service in that a 'pay award' does not mean in my case a pay award related to a promotion? It was my understanding that the term pay award means an increase in pay/salary. Or am I mistaken here?

They have not recalculated SMP as yet

Also, how would this sit in terms of pay equality? Surely I would have a claim for a dispute under the Maternity equality clause or the pregnancy and maternity discrimination provisions in the Equality Act? These related to any maternity related pay not just SMP. The latter also refers to promotion and relevant pay for a promotion which wpuld have been obtained if a woman was not on maternity leave.

Lougle, I understand how it is calculated but how would you then explain the alabaster rule in these cases? Its very clear that mat pay should be recalculated in such circumstances. This is case law therefore conditions of service should fall in line with the provisons. Surely NHS conditionsof service are not above the law?

Arrrgh even my own HR dept dont seem to agree with one of them saying I should see the increase and another saying i shouldn't!

Thanks all so much for your time x

Sorry, I was commenting about the '1 week reference period' thing. I'm not in HR, and I'm not legally qualified. My searching on the subject seems to say that for Occupational schemes it comes down to what is defined as an increase, but as your promotion is basic pay that you pay National Insurance contributions on, and that is the definition of a pay increase under the HMRC definition for SMP payments (when they have to work out which pay is used for the calculation, when there may be wages, expenses, car allowance, etc), then yes, I'd say it's covered under the Alabaster ruling.

Are you in the RCN?

Aww thanks again for your time Lougle, it's a total minefield!

I'm actually a Clin Psych so not a member of RCN, I guess it would be Unison for me but I am not a member currently.

Oh yeah flowery I agree, I was really just seeing if I could find something to enhance my own knowledge

'Pay award' in this context means an across the board increase, not a pay increase to an individual as a result of a promotion etc. In local govt and public sector, it's usually a % applied to all bands effective from April, so that's what they mean by pay award, not just any increase to pay that happens for any reason.

They've written the policy this way to provide for employees to still receive any increases to their salary which would have occurred as standard if they were still at work (ie. April increase, annual increments) and they have purposefully left out other increases, such as promotions.

Don't forget that these terms of service have been ratified by the unions, so it's not as though they've just accidentally forgotten to include other types of pay increase - they have specifically written their policy so that they only recalculate OMP for pay awards and increments, and they don't want to include anything else.

I say this because although I think there's definitely an argument that if they're using the SMP calculation criteria then they should have to follow all the SMP calculation rules including Alabaster, I think it's probably naive to think we've spotted a loophole that they haven't noticed so it's likely to be something they've already taken advice on.

NHS terms of service certainly aren't above the law, but they are scrutinised heavily by both the NHS employment lawyers, as well as the union legal representatives, so I'd be very surprised if they haven't taken advice on this exact question and come to the conclusion that they can provide for contractually required pay increases and legally exclude promotions etc.

Personally, I would write quoting the pay section of the maternity equality clause of the Equality Act 2010 (section 74), and find out what their argument is for why they don't believe that your pay increase is covered by this. I'd be genuinely interested to hear their response if you'd come back and share it.

Hi Nerdsville,
Again thank you for taking the time to offer advice.

I guess I just hoped that it was my NHS trust that were not up to speed, and were unfamiliar with this particular situation (we are a small rural trust and they have been prone to making numerous HR clangers) and as I mentioned it doesn't seem they can agree within themselves with someone in HR enailing me to say that I am entitled to the recalculated 8a pay.

I've emailed my case and quoted the relevant sections of the Equality Act and Equal Pay Act (derived from the Equality Act). I will definately update you all with any developments. I still cannot believe anyone would consider this to be anything other than discriminatory, at its most basic, I am being docked pay that I would be earning if I did not have a baby or went back to work, this isn't over time or bonus pay, it's my basic wage.

Thanks so much again, if you could see my tiny little munchkin and all she has been through in her short life so far you would completely understand why I want to fight tooth and nail for more time with her, I just hope it doesn't mean we hsve to sacrifice our new home or get into debt.

Bless you all,

X

So thanks to all of you who waded in on this topic. I am pleased to say that after emailing my payroll and HR department quoting the relevant sections of the equal pay act and the equality act, they have contacted me today and stated that they have now decided my pay rise due to my promotion WILL be honored in my enhanced maternity pay.

Thank you all for your input, I wonder how many other people may have given up and accepted their initial responses to my queries (I had several phone calls and emails whereby payroll and HR were adamant that I would not have my maternity pay recalculated).

With best wishes,

EM x

That's a great outcome for you . I hope you can relax now, and enjoy your maternity leave.