MNHQ here: Sign in for yet another FREE legal advice clinic about pregnancy, maternity or parental issues at work from Maternity Action

[AnnaCMumsnet]

You may remember Mumsnet and Maternity Action teamed up to provide an online legal clinic, offering free advice. We got such positive feedback we’re doing it again.

From Monday Mumsnet and Maternity Action are providing an online legal clinic, offering free advice on pregnancy, maternity and parental rights at work from volunteer employment solicitors and barristers who are members of the Employment Lawyers Association.
Maternity Action reports huge demand for its advice line, especially topics such as redundancy during maternity leave, return to work, maternity pay and rights during pregnancy, and on Mumsnet's Talk forums, the topic of employment rights is a hardy perennial. The clinic will respond to this demand in a hopefully innovative way, providing free, accurate, public advice online and raising awareness of parents' rights at work. It will also enable Maternity Action and Mumsnet to identify trends and produce permanent content to address areas in which employers and workers could benefit from clear, upfront guidance.

The clinic will take the form of a 'Q&A' session on this thread. You can post questions about your employment rights dilemmas relating to pregnancy, maternity and parental rights at work. Specialist solicitors and barristers will take necessary additional detail via private messaging before posting up answers and advice.

The clinic will run for a week from Monday 3rd to Friday 7th February and will be held on a quarterly basis. We will do our best to provide all answers during the week but, at the latest, by the Monday of the following week. You can find information on where to go for more help once the clinic has ended here.

What to do if you’d like to post a question

1. If you have a question about your rights at work during pregnancy, maternity or parental leave please post it below. Please give as much information as possible but remember that this is an online forum and can be viewed by the public – including your colleagues and employer. You can use the private message facility to disclose any information you would prefer to keep off the public forums.

2. Please send your name and the name of your employer by private message to MaternityAction so that it can be passed on to the volunteers to do a conflict of interest check. We cannot post a reply until you have sent this information by private message.

Once your advice has been posted online, you will have an opportunity to provide feedback. This helps us to find out whether you found the advice helpful, whether it helped you to resolve your situation at work and some information about you. All survey responses are anonymous and confidential. Providing feedback will help us to see what improvements can be made in developing this type of online free legal advice clinic. You can fill out the survey here.

Ts and Cs – please read
The advice provided to an individual poster is based only on the information provided by that poster. Advice on this thread is also particular to the individual who has asked for it and is likely to be specific to that person’s situation. A poster may have provided further relevant information by private message which will not appear on this thread. So please take care if you choose to apply that advice to your own situation - it is recommended that you first take legal advice from one of the sources we have suggested here.

Mumsnet, Maternity Action and Maternity Action's volunteers accept no liability for any loss suffered as a result of an individual choosing to follow advice provided to another poster's question on the thread.

The lawyers, all of whom are specialists in employment law, will be working as volunteers for Maternity Action in respect of the clinic. Any personal information collected as a result of the clinic will be held by Maternity Action and will be deleted after 18 months. If you wish to make a complaint about the service you received, you can use Maternity Action’s complaints policy here.

OP edited to change Maternity Action's username.

Hello. I am on maternity leave at the moment. My statutory maternity pay runs out at the end of May.
Sadly I have to have a brain operation in April/May followed by oncology treatment. I don't know what to do about work? I have been told by union to write a letter to say I intend to go back at the end of May, then a few days before give in a sick note. This doesn't sit right with me. I'm a teacher and this would mess with too many people/kids.
I have a 17 month old, and a 21 week old baby. So getting statutory sick pay is very important. Where do I stand please? What can I do? I want to just be honest with them as it will be easier, but I have my children to think about and money is needed! Thank you.

Where there is a reduced need for work of a particular type, there is a fair redundancy situation. This would include where a business decision (however sound) is made that a particular skillset is no
longer needed to carry out work in a particular way, or where a particular role can be “absorbed” by others with a different role. That would appear to cover your situation.

I have assumed that the new recruits will be of the same skillset as your colleagues rather than you. If this is the case, the fact that your employer is recruiting does not mean that there is no redundancy situation.

Whilst making a part time pregnant employee redundant certainly raises suspicion, on the limited information I have here, there does appear at least to be justification for the redundancy.

Whether or not the new positions are suitable alternative employment for you will depend on the similarities between the new roles and yours, whether you have the necessary experience and skills
to carry out the role, and whether the terms and conditions (including pay) are suitable for you. If there is any doubt, your employer can offer you a trial period.

@redtornado

I am currently pregnant (known by my employer and I had already had risk assessment meetings prior to this) and both my position and myself are in process of being made redundant by my employer. I have a somewhat niche role and work alongside colleagues who can do most of what I do (though not to the same depth), but I only do the work they do at a basic level.The work itself is still there and needs doing, however they are absorbing this work into the responsibilities of my colleagues and looking to hire further members of staff to do this job. They have said that as I am not at the same skill level as my colleagues, there are no reasonable alternative positions within the company.

I had been working part time since I came off maternity leave one year ago. My employer said that it isn't worth paying a part time person to do this when the work can be carried by the rest of the team. Prior to having my previous child, I was a full time employee. I have worked there for more than 2 years.

This seems like a bit of a grey area and I'm not sure if they are toeing the line or if they have crossed it. Any advice would be greatly appreciated, thank you very much!

I'm currently working for a new employer, and am pregnant but I don't qualify for SMP as I haven't been with them long enough.

When I was 12 weeks pregnant, I registered as self-employed but only made a small amount, not enough for class 2 NI contributions. Then not long after I took on a job with my current employer and will get the 13 necessary weeks to qualify for the full amount of maternity allowance. I should be okay for that, unless the baby comes really really early. However, to meet the criteria of 26 weeks of employment/self-employment within the test period, I have to work until I'm 38 weeks.

I can't find out what will happen if the baby comes early, for example if it's born at 37 weeks so I only have 25 worked/self employed weeks, but including 13 at the higher rate of pay. Will I still be able to get maternity allowance?

Hello,

I teach (part-time) at an independent secondary school. I am due to start maternity leave in September.
My current plan is to say I would like to take the full year off, but can I decide part-way through my maternity leave that I would like to return at 9 months instead of taking the full year? I would like to see how things go with the baby (my first) before committing to returning earlier. My school will have to hire a maternity cover for the academic year, but can I still legally choose to return earlier even if they are still taking my classes?

Thank you very much in advance for any response.

Hello,

I teach (part-time) at an independent secondary school. I am due to start maternity leave in September.
My current plan is to say I would like to take the full year off, but can I decide part-way through my maternity leave that I would like to return at 9 months instead of taking the full year? I would like to see how things go with the baby (my first) before committing to returning earlier. My school will have to hire a maternity cover for the academic year, but can I still legally choose to return earlier even if they are still taking my classes?

Thank you very much in advance for any response.

Hi,

I'm currently on maternity leave, was due back on 2nd March but have handed my notice in and am taking holidays so my last official day is 27th March.

To do my job I have to be registered with a professional body. I did a voluntary removal in September (as I didn't know if I was going to return or not) - if I want to be put back on, all I need to do is, do my CPD and pay by this September then I have continuous registration.
I did a few KIT days in Dec so had to tell work I’m no longer registered and HR said they’d pay me min wage (which is less than my normal wage). That was fine.

If I was returning I would’ve done my CPD and paid the registration, therefore returned to my normal post and normal pay. Work are now saying that they’ll be paying me holidays due up to last September (when I removed myself from the register) on my normal rate and the rest on min wage. I tried to argue the case with my manager but she said it was the area manager who said about it and she’d get her to call me (she hasn’t).
Is this right or should I be paid holidays on my normal rate for the duration of my maternity leave?

PS how do I private message Maternity Action? When I click on their name nothing happens and I can't see where else I can do it (I'm on my phone)
Thanks

@deendon did you find out how to message Maternity Action?

Hi MB34 I just went to where they've answered someone else's query and just clicked on message poster.
They've messaged me back to confirm that was right.
I don't know how the first people managed to do it though!
Sorry your employer treated you like that, I think there is some sort of competition running for employers to come up with new and inventive ways to stuff people on mat leave. No doubt they have some sort of secret employernet to share their successes.

Dear ItIsAllChange

Thank you for your enquiry.

Our understanding from the information provided is that you need to return to work for a year after maternity leave, and want to understand how a year’s service will be calculated. We presume that this is to retain the maternity benefits paid out during a period of maternity leave.

We are unable to provide detailed advice without knowing more about your employer’s policies on maternity leave and maternity pay, or other policies governing this.

Generally, lots of employer’s operate maternity pay schemes like this. Ordinarily a year’s service would commence from the date that you returned to work and should include periods of leave including annual leave, or sick leave, taken once you had returned to work after maternity leave.

Please note that this is only general advice, and some employer’s may operate schemes that are different to this. The precise terms of your employer’s maternity pay/leave should be set out in a policy. We would strongly suggest that you request a copy of this, and more information, from your employer or their HR adviser.

We hope that this helps.

@ItIsAllChange

I have to return to work for a certain amount of time after maternity leave. If I have parental leave, sickness, or holiday in that time, do I need to add that onto the end of the certain amount of time or is that included in it? So if for example I need to return to work for a year and was absent for two months would that mean I have to return for 14 months?

Dear Sugarbeaches

Thank you for your query.

I understand that you seek advice on whether you can work for Edexcel on a PAYE basis during your maternity leave without it affecting your maternity leave or your maternity pay.

The first thing we would normally advise you to do is to check whether your contract of employment with the school contains a clause governing doing work elsewhere. Sometimes this can be specifically prohibited in the employment contract, other times the clause may require the employee to inform the employer or seek prior permissions. However, as you say that your school encourages this work as professional development, it probably is not an issue but it would still be worth checking your contract just to make sure.

Assuming that your employment contract does not stop you working elsewhere during your maternity leave, you are allowed to undertake self-employed work for another organisation during your maternity leave without it affecting your entitlement to statutory maternity leave or statutory maternity pay. However, if you work for a new employer (i.e. an employer for whom you did not work in the 15th week before your expected week of childbirth) during your maternity leave then your entitlement to statutory maternity pay will cease (if you are receiving SMP) and you will need to inform your employer. It also may affect any contractual maternity pay that you receive from the school over and above your SMP, but you will need to check your employment contract to see what it says in this regard.

The difficulty in your situation is of course that, while the contract with Edexcel says you are self-employed, you are actually going to be paid on a PAYE basis and therefore your pay will be subject to deductions for tax and Class 1 National Insurance contributions at source. Unfortunately, because of this, you cannot be classed as genuinely self-employed since only employees and workers are paid via PAYE. The relevant law is contained in the Social Security Contributions and Benefits Act 1992 (SSCBA) which provides that where an employee starts work after the baby is born, with a new employer, her SMP entitlement will cease (section 165(6), SSCBA). The Act defines an “employer” as anyone liable to pay class 1 NIC’s.

To conclude, unless you can reach an agreement with Edexcel whereby they agree to pay you as a self-employed contractor (i.e. without deduction for tax or class 1 NI’s) then unfortunately you will need to inform the school that you are going to be earning elsewhere on a PAYE basis. The school will give you a form SMP1 explaining why your SMP has ceased and your SMP will stop in the first week that you start working for Edexcel. SMP will not resume again once you stop working for Edexcel.

Perhaps your school may help you in your dealings with Edexcel, as you say they encourage this work as professional development and so it will benefit both you and the school.

Please note that whereas your SMP is likely to be affected if you work on a PAYE basis for Edexcel, your statutory maternity leave will continue.

As you are probably aware, you can of course work for your employer during your maternity leave for up to 10 working days – these are called Keeping in Touch days or KIT days. There is no requirement that these days are paid – it is a matter of agreement between employee and employer. However, if you work more than 10 KIT days for your employer then any further work for that employer will lose you the whole week's entitlement to SMP for the week in which such work is done and your statutory maternity leave will also likely come to an end as you will be regarded as having returned to work.

I appreciate this is not the answer you may have hoped for but I hope it has been helpful.

@Sugarbeaches

Hello,

I was looking for some advice as I am struggling to find this online or through my school.

I am about to start maternity leave in early March. I have applied and been accepted to mark for Edexcel for the summer GCSE exams. This is encouraged by my school as professional development. I have checked the contract and in the terms and conditions it states that I am undertaking the work on a contracted basis and I am self employed. Edexcel however will be paying PAYE tax for me on this one off sum I should receive in September.

I have checked in regards to Maternity pay and it does state that self employed work can be undertaken without losing my maternity, however I am unsure as to where I stand because of the PAYE situation.

Would you be able to advise at all?

Thanks

Dear Howdidido

Thank you for your questions. Please see below.

Do any of us have any more or less protection against redundancies? Which if any of us would get priority in those roles? If there is no priority how will role allocation be decided?

Individuals on maternity leave/SPL have certain protection in a redundancy situation. They are not protected from selection and can still be made redundant. However, if you are absent on maternity leave or SPL at the time of redundancy, you will have a right of first refusal for any “suitable alternative vacancy” if such a role is available.

It can be difficult to establish whether this protection applies because it depends on the structure of the redundancy exercise. There are different ways that redundancy situations can be structured, and the employer has quite a lot of scope for deciding how to proceed.

(1) One scenario is that the employer is effectively deciding who is leaving. An employer may be reducing the number of people performing a particular role. In that scenario, the employees in the team either get to stay on in the same role, or they are selected for redundancy. In deciding who to select for redundancy, the employer has to use fair and objective selection criteria. They must be careful to ensure that the fact that you are on maternity leave/shared parental leave (SPL) does not prejudice you in any way. For example, they cannot mark you down for pregnancy related absence. If they are taking into account appraisal ratings from a period in which you were off on maternity leave/SPL, they need to be very careful about how they score you. It could still be that even after using fair selection criteria, you fall to the bottom of the list and are provisionally selected for redundancy. Unless another job becomes available in the organisation, you can be fairly dismissed as redundant. You are not specially protected because of maternity leave/SPL in this scenario. There may still be other vacancies at the employer that you can apply for but you don’t have any special priority to be appointed into those alternative roles.

(2) Another scenario is that there is a reduction in headcount, but the remaining roles are changing a bit more significantly and the employer is instead deciding who is staying. In that case, all the individuals in a team may be provisionally selected for redundancy, but the employer makes some “suitable alternative roles” available. In that case, all employees can apply for these posts. The employer selects in the people who are going to stay. Those unsuccessful with their application will be made redundant (unless some other role becomes available). If the employer uses this method of selecting into new posts (rather than selecting out) then you (and anyone else on maternity leave/SPL) would have a right of first refusal on the suitable alternative role even if you are not the employer’s first choice. This is what people tend to be talking about when they say that those on maternity leave/SPL are protected from redundancy.

There is then also the middle ground where the employer is mainly deciding who is leaving, but they have other vacancies available generally in the organisation. It is a bit less clear whether remaining roles are a suitable alternative that you should be given first refusal on, or whether they are different enough to just be equally open to everyone at risk of redundancy to apply for. It is then in your interest to be able to show that a role should legally be classed as a “suitable alternative vacancy”.

In this case, there are a number of you with the same protection. While you may be prioritised over staff not on maternity or SPL, it will then be a level playing field between you.

Does SPL afford the same protection as maternity leave? I will probably be on SPL when the redundancies happen.

Yes. One practical difference though is that employees have more flexibility about when to take SPL so you could try to time it to coincide with redundancy date to give you added protection.

If they happen while I am on annual leave do I have any protection?

While every employee has the right to be notified of vacancies, those on annual leave do not have the same right of first refusal as those still on maternity leave/SPL even if that annual leave immediately follows a period of maternity leave or SPL.

We have enhanced maternity pay which we have to repay if we don't return for at least 12 weeks. If we take redundancy (either voluntary or not) will we need to repay this? If we resign before the redundancy goes through (i.e. find another job) would we also need to repay?

If you were to be made redundant, you would maintain your statutory entitlement until it runs out. You would also be entitled to notice pay, which will depend on your contract and statutory entitlements. You may also be entitled to a payment in lieu of accrued but untaken holiday (which could be significant if you have had a long period of maternity leave).

Any enhanced maternity pay could be clawed back if you leave. Most employers won’t do this in a redundancy situation, however, it is a matter of what the policy says, and the discretion of the employer in most cases to do the right thing.

If you resign that can be good because you get a new job, but you should discuss the impact of this with your employer. Not only could it mean you have to repay the enhanced maternity pay, but if you resign in order to leave earlier than the date your employment was due to end by reason of redundancy, you could also forfeit your statutory redundancy payment and any enhancement. This is because legally the employer doesn’t need to pay this unless it is them who dismiss you as redundant. However, as it will suit the employer to have someone go voluntarily, they may agree a release date with you that allows you to start a new job, keep your redundancy pay and keep your enhanced maternity pay. The key here is that you should get matters agreed in writing, and instead of resigning, try to agree an earlier end date by reason of redundancy. If your employer will not agree to an early release date, you should think carefully about whether it is worth forfeiting the redundancy pay in order to secure the new role. If you resign (rather than leaving by reason of redundancy) it can also have an impact on your ability to claim benefits.

If your employer is offering an enhanced redundancy package, they might ask you to sign a settlement agreement which would include a waiver of claims (including in relation to discrimination or unfair dismissal). You would need to decide whether or not to sign this, and would need to take legal advice on the terms and effects of the agreement.

@Howdidido

Ive just found out there are rumours my company will be making significant redundancies this year. I am on maternity leave which I believe protects me a little in terms of redundancies. However all 4 people who do the same role as me are also on maternity leave (my poor boss...!). There are 3 maternity covers covering our roles. We expect the number of positions doing this role to decrease but unsure by how many.

I will be ending my SPL at the start of August, but am taking August as Annual leave. I have been with the company 5 years.
A will return at the start of July taking July as annual leave. She has been with the company for 6 years.
B will return next month having taken 1 year Mat leave (plus AL at the end). She has been there 10 years
C will return probably in Feb 2021 having taken 1 year Mat leave. She has been with the company less than 1 year before going on leave.

All of us are under 40.

My questions are:
Do any of us have any more or less protection against redundancies? We expect them to happen in July or August but to be announced in April. but as yet have no idea of scale or exact dates.
We expect the number of roles to decrease. Which if any of us would get priority in those roles?
If there is no priority how will role allocation be decided?
Does SPL afford the same protection as Maternity leave? I will probably be on SPL when the redundancies happen.
If they happen while I am on Annual leave do I have any protection?
Many thanks!

Dear sunshinefordays

Yes, it is entirely up to you to decide how much maternity leave you wish to take. Your employer should assume that you are taking the full year's maternity leave that you are entitled to. If you wish to return to work earlier you must give at least eight weeks' notice. As long as you give at least eight weeks' notice your employer cannot postpone your return or prevent you from returning.

I hope that helps.

@sunshinefordays

Hello,

I teach (part-time) at an independent secondary school. I am due to start maternity leave in September.
My current plan is to say I would like to take the full year off, but can I decide part-way through my maternity leave that I would like to return at 9 months instead of taking the full year? I would like to see how things go with the baby (my first) before committing to returning earlier. My school will have to hire a maternity cover for the academic year, but can I still legally choose to return earlier even if they are still taking my classes?

Thank you very much in advance for any response.

Dear MiniMinion

Thank you for your query. Unfortunately you must be employed or self-employed for at least 26 weeks in the 66 weeks before your baby is due in order to qualify for Maternity Allowance.

If your baby comes early and you haven't completed 26 weeks of employment and self-employment, your claim for Maternity Allowance will be refused and the Department for Work and Pensions should check your National Insurance contribution record to see if you can qualify for Employment and Support Allowance for an eight week period around the time of the birth.

It's therefore very important to check that you are including all the weeks or work that you are able to when claiming Maternity Allowance. You do not need to work for the full week for the week to count. Even if you only worked for one day or a part-day in a week, it will still count as a week of work. If you did any work in the 6 months before you became pregnant you can include that in your claim form, as it falls within the 66 week period, even if it was weekend or evening work. You can also include some weeks of work abroad in some cases. You can find the Maternity Allowance claim form here and a chart for working out your 66 week test period: www.gov.uk/government/publications/maternity-allowance-claim-form

You should also bear in mind that you still count as 'employed' by your current employer if you are taking sick leave, annual leave or maternity leave, so if you want to start your maternity leave a few weeks before your birth you can still count those as weeks of work.

I hope that helps. If you need any further help in calculating whether you have done 26 weeks of work you should seek further advice.

Good luck!

@MiniMinion

I'm currently working for a new employer, and am pregnant but I don't qualify for SMP as I haven't been with them long enough.

When I was 12 weeks pregnant, I registered as self-employed but only made a small amount, not enough for class 2 NI contributions. Then not long after I took on a job with my current employer and will get the 13 necessary weeks to qualify for the full amount of maternity allowance. I should be okay for that, unless the baby comes really really early. However, to meet the criteria of 26 weeks of employment/self-employment within the test period, I have to work until I'm 38 weeks.

I can't find out what will happen if the baby comes early, for example if it's born at 37 weeks so I only have 25 worked/self employed weeks, but including 13 at the higher rate of pay. Will I still be able to get maternity allowance?

I am currently on Maternity Leave from a large national employer. I've been forced into taking early leave as I had returned mat leave and a request for flexible working was ignored.

I have now been advised that my job has been offered to a colleague on a permanent basis as they wish to move someone else into his role. what can I do about this?

Hello

We're closing this thread to new queries now.

Thank you so much to everyone who's posted questions this week. And a very big thank you to Maternity Action and their very helpful volunteers. We will do our best to get answers for the outstanding question to post on the thread. Anyone who needs advice can always contact Maternity Action directly.

Thanks
MNHQ

Dear popsjd24

Thank you for your query.

The general principle is that your employer would only be able to recover any contractual maternity pay entitlement (i.e. enhanced maternity pay) if they have notified you of this in advance. This would normally be contained within your contract of employment, company maternity policy, or staff handbook. If there is no such notification, then your employer would have difficulty in claiming back the salary.

You have suggested that none of these documents refer to potential for your employer to claim back enhanced maternity payments. This suggests that they may have not have any entitlement to do so, and you would be free to resign if you wished.

However, the documentation can be quite technical. The difficulty of course being that if you have missed, misinterpreted, or misunderstood a reference, then you could find yourself having to repay the enhanced pay without realising. There would be no obligation on your employer to agree to rescind your resignation, if that’s what you then wished to do (i.e. in order to retain the enhanced pay).

The only way to be certain that your employer is not going to recoup the enhanced pay would be to ask them, however, there is a risk, particularly with a small employer, that they will check the law decide that it might be repayable in some circumstances (even if they had not considered the issue previously). In a large organisation, it could be harder for an employer to change the policy.

Alternatively, you could email your employer to say that you have reviewed all of the company’s relevant maternity information and policies before you go on leave, listing the documents you have reviewed, and ask your employer to confirm whether there is anything else you need to be aware of. If they say no, you can be reasonably comfortable that no such policy exists, and could have a defence if they try to claw it back, i.e. you were not notified of (or could not access) the relevant clause/policy at any time up to your resignation.

I'm afraid that neither route is entirely risk free but I hope it gives you a little more certainty.

@popsjd24

Hello!

I work for a small business and will be the first person to go on maternity leave in April.

I have a very beneficial maternity leave policy, however I wanted to query the legalities or should I decide not to return after my maternity leave has ended.

I have read on the Maternity Action site that you need to be told how long you must to return to work for before you'd be responsible for repaying any contractual maternity pay.

maternityaction.org.uk/advice/resigning-from-your-job-during-pregnancy-and-maternity-leave/

Can I just confirm that if it doesn't state anywhere in my contract or company handbook before I leave for maternity that I would have to return for a set period without needing to repay the difference between my contractual and statutory maternity pay, then I would not be responsible for repaying this amount?
Eg. I could hand in my notice before my maternity leave ends and I would not have to repay anything - unless I am told before my mat leave commences.

Hopefully that makes sense - I just want to be as best prepared for every eventuality before heading off later this month!

Thank you.

Dear Deendon,

Thank you for your query.

Your post seems to allude to a number of legal issues.

You firstly mention that in 2009, your employer advertised your job and hired someone else, whilst you were on maternity leave. Clearly, this raises questions as to whether you were discriminated against because of your maternity leave/ pregnancy. We would of course need further information on this point to advise further. However, you should note that in order to bring a claim for discrimination in the employment tribunal, you must do so within three months less one day of the discriminatory act. As such, given the passage of time since the discriminatory act, you would likely be time barred from bringing a claim for discrimination.

The wider, and more pressing issue is that you have received a court summons to repay the maternity pay that you received in 2009. On this issue, I would strongly advise that you take legal advice from a litigation lawyer, as there are specific rules relating to money claims in the county court. In fact, this does not appear to be an employment issue (albeit the came about as a result of an employment relationship), and is actually a money claim.

It would of course be helpful if you could locate the emails that you reference in your original post, as well as the extract of the Whitley Regulations. This will all be helpful evidence when defending your claim at the County Court.

Further, you ask whether you could claim compensation for harassment. Unfortunately, I would think this to be unlikely, however, I urge you to contact a criminal lawyer if you wish to explore your options on this front.

It is important that you do take action with regards to your court summons. Please contact a litigation solicitor that can assist as soon as possible.

@deendon

I've put this on another thread but I'll give it a go on here.

I was a consultant (medical) so my employer was the NHS.

In 2009 I went on maternity leave and whilst I was on leave my employer advertised my job and employed someone else. (I applied, was interviewed but didn't get the job)

At that time I had a number of discussions with the BMA (my union I had continuous membership from when I was Dr) and have found an email from 2010 from the BMA that clearly states I don't have to repay my maternity pay

In 2011/12 the trust emailed me asking me to pay back my maternity pay there were a few emails back and forth which ended when I pointed out which paragraphs of the Whitley regs and consultants T&Cs stated just that.

I never received any reply to that email so assumed they were just feeling 'bitter at being wrong' so to speak

Sometime since someone at the trust decided to restart this via snail mail.

I do not have these letters and will not be able to get them, they used a very old physical address they would have had which belongs to a confused elderly family member.

Despite replying to every email, when I didn't reply to these letters (because I never received them) they didn't email me they seem to have just escalated the threats. From discussions I do not think there are a lot of letters ie I think this restarted relatively recently.

The other day elderly family member received a court summons for Wandsworth county court for the maternity pay plus interest at 8% a year

I have contacted the BMA who have said they wont help because I am no longer a member (I am no longer a Dr!!)

What is your advice to me?

I live overseas so dealing with this is difficult

My final thoughts are am I being harrassed? Can I claim compensation for this? Can I claim costs?

I'm fine with flying to the UK & instructing a solicitor to write and tell them what I told them 8 years ago but this is going to cost me thousands.

If the NHS wants to spend its money in such a way who wouldn't like an all expenses paid holiday back home thanks to the taxpayer but it would be incredibly inconvenient. Is this what I need to do?

Please ignore the typos I am absolutely distraught by this and it has reawakened all the old hurt.

Thanks

As you may be aware, subject to certain qualifying conditions, all employees in the UK are legally entitled to statutory maternity pay for up 39 weeks during maternity leave. An employer may choose to offer enhanced maternity pay which is above the statutory level and if they do they can dictate the level at which they pay this. Most employers who offer enhanced maternity pay stipulate certain conditions, for example, that the employee has to have been employed at the Company for a certain period of time (e.g. a year) before they qualify. They may also offer different levels of enhanced pay, for example, based on length of service or seniority.

As the discrepancy in enhanced maternity pay you refer to is based on job title, it is likely that is due to difference levels of seniority. The first place to look to explain the difference (if you haven’t already) would be your company’s maternity policy and review the terms in relation to enhanced maternity pay.

If it is in fact the case here that there are two employees with different job titles, but all other circumstances are the same, including seniority, length of service and location, but they are nevertheless being offered different levels of maternity pay, then this would be concerning and the employee who is receiving the lesser benefits may have a potential claim against the Company.

I am not aware of what is normal in terms of enhanced maternity pay in the US, but this should not make a difference to the UK position in my view. Unless the UK office have simply been told to replicate the maternity benefits the company offer in the US and not given any additional thought to it.

@foxtrotcharliejuliet

I have recently become aware that employees at my company are paid different maternity benefits depending on job title, with some receiving 18 weeks full pay and others receiving 16 weeks full pay. While I appreciate these numbers are higher than many people get, I believe the reason for the discrepancy is that the company is headquartered in America, where this is considered normal for the market. I would be surprised if this were also true in the UK, but am finding it hard to get any more information. Are you able to shed any light on this?

Dear Oakley16

Your employer has a duty to protect your health and safety during pregnancy and should assess the risks arising from any processes, working conditions, physical, biological and chemical agents. If any risks are identified, they should make reasonable adjustments such as altering your working conditions or hours of work. If you travel as part of your work, this should be assessed as part of your working conditions, but whether this health and safety protection applies to commuting to work is likely to depend on the circumstances such as where you live and work, the nature of your job and whether you have any other health conditions. A failure to protect your health and safety during pregnancy may be pregnancy discrimination.

If you want to change your days, hours or place of work, you can make a request for flexible work. You must have been employed by your employer for at least 26 weeks and you can only make one request per year. You also need to bear in mind that if your request to work from home on more than two days' a week is granted, this will usually be a permanent change to your contract. All employers must consider a flexible work request seriously and can only refuse it if certain business-related reasons apply. If you have already been working at home for two days a week this may help to persuade your employer that the arrangement already works well.

You can ask your employer to temporarily adjust your hours of work, e.g. travelling outside rush hour or to work additional days from home, however, you cannot insist on changes unless there are health and safety risks as above. Alternatively, do you have any accrued annual leave that you could use to reduce your working week?

I hope that helps.

@Oakley16

I work from home 2 days a week as I have a long commute to work. I'm starting to struggle now I'm getting further into my pregnancy, if I needed to work from home more where do I stand if they say no?

Dear Cchka

Thank you for your query. Shared parental leave is a complex new right.

Firstly, to answer your last question, you will need to give notice to curtail your Maternity Allowance at the same time as your wife gives notice to take shared parental leave. This is because your wife's notice to her employer to take shared parental leave will need to confirm that you have 'curtailed' or cut short your Maternity Allowance by however many weeks you are transferring to your wife. Your wife is only entitled to shared parental leave if you have some untaken Maternity Allowance to transfer to her. There are no specific forms for curtailing Maternity Allowance, you simply notify the MA claims department that you wish to stop your Maternity Allowance after x number of weeks e.g. at 31 weeks as stated in your query. You can do this by stating it on your Maternity Allowance application form but I would also suggest that you write to the MA Claims Department at the address stated on the claim form: www.gov.uk/government/publications/maternity-allowance-claim-form

Secondly, your wife will need to give notice to her employer of the dates that she wants to take each period of shared parental leave. If she is taking three chunks of leave, she is entitled to give three separate notices for each chunk of leave and her employer cannot refuse it. Her shared parental leave can be taken at any time in the year from your baby's birth and it makes no difference whether her shared parental leave is at the same time as your time off work or when you have returned to work.

Finally, in relation to her entitlement to Statutory Shared Parental Pay, this will depend on whether she meets the qualifying conditions. This can be found on here: [[https://www.gov.uk/shared-parental-leave-and-pay/eligibility-for-birth-parents]]
If you have curtailed your Maternity Allowance by 8 weeks and your wife meets the eligibility criteria for Statutory Shared Parental Pay, she can be paid it by her employer during her 8 weeks of shared parental leave.

I hope that makes sense and helps you to plan. There is a good Government guide to shared parental leave, with sample forms, that you can find here: www.gov.uk/guidance/shared-parental-leave-and-pay-guidance-and-tools-for-parents

@Cchka

I'm self-employed and pregnant and entitled to maternity allowance (this has been confirmed in a letter from jobcentre plus). My wife is full-time employed and entitled to shared parental leave, which I plan to create by curtailing my maternity allowance after 31 weeks to return to work. My wife plans to take the shared parental leave in three small chunks of 2-3 weeks.

I have two questions:

1. given that I won't have received all 39 weeks of maternity allowance - having created 8 weeks of shared parental pay for my wife - is she entitled to have all of the discontinuous chunks of shared parental leave paid from that 8 week allowance? Even if the periods of shared parental leave overlap with my time on maternity allowance in some cases or are after I have returned to work as self-employed in other cases?

(The initial period of shared leave will be while I'm still on maternity allowance, but I plan to go back to work in November, say, and my wife would like to take some parental leave in February. All shared parental leave period will be before the child's first birthday)

2. My wife's company seems to want me to curtail my maternity allowance in advance (i.e.before I've sent in the form to start the payments!), in order to create the shared leave for her. Is this even possible?

Many many thanks in advance for your response.

Dear csmw

Thank you for your enquiry. I'm sorry to hear you've been having a difficult time.

On return from maternity leave you are entitled to return to the same job. This protection comes from the Maternity and Parental Leave etc. Regulations 1999, regulation 18. If you have taken more than six months maternity leave your employer can offer you a suitable alternative job but only if they can show that it's not reasonably practicable for you to return to the same job. Any offer of alternative work must be suitable for you in terms of your skills and experience and type of role and it must be on the same terms and conditions. It may be automatic unfair dismissal and/or maternity discrimination if you are not allowed to return to your old role and you should seek advice.

I would suggest contacting your employer to make it clear that you wish to return to work and to discuss your concerns about changes that are taking place in relation to your role. If you are in a union, you should ask for their support and you can get legal advice. Alternatively, you should check whether you have legal expenses cover on any home or car insurance as this can cover the cost of legal advice for employment disputes.

There is further information on how to resolve disputes with your employer and time limits for taking action here:
maternityaction.org.uk/where-to-go-for-more-help/

Finally, if you need to make an application for flexible work, if this has still not been resolved, you should allow at least three to four months before returning from maternity leave. You can find further information on your rights in relation to flexible work here: www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests

I hope that helps and that you are able to resolve it.

@csmw

I am currently on Maternity Leave from a large national employer. I've been forced into taking early leave as I had returned mat leave and a request for flexible working was ignored.

I have now been advised that my job has been offered to a colleague on a permanent basis as they wish to move someone else into his role. what can I do about this?

Dear Nikkinoodle84

Thank you for your enquiry. I am sorry to hear that you are having a difficult pregnancy.

I understand that you are currently 29 weeks’ pregnant. You have been diagnosed with HG which necessitated a period of time being signed off work. You have now returned to work and have asked to continue to work on night shifts as these are lighter on work and fit in with your sickness.

I understand that your intention is to start your maternity leave at 36 weeks, although you have requested to take 2 weeks prior to that so that you will finish at 34 weeks.

In terms of your annual leave, your contractual terms relating to the accrual of annual leave will continue during both your Ordinary Maternity Leave and Additional Maternity Leave. Therefore, whilst you are on maternity leave, you will continue to accrue your statutory and contractual paid annual leave entitlements.

Annual leave cannot be taken during maternity leave and therefore your employer must allow you to take your full holiday entitlement outside of your maternity leave period. Therefore if you do wish to use up some of your holiday entitlement for the current holiday year before starting your maternity leave, it would be sensible to do this immediately before your Ordinary Maternity Leave is due to start. It is incorrect to state that you will lose your accrued annual leave if you commence maternity leave. The position is that if you commence maternity leave, you will no longer be deemed to be taking annual leave, and therefore your annual leave will be carried over to the next holiday year once your maternity leave comes to an end.

If you are treated unfavourably during the period of your pregnancy because of a pregnancy-related illness, this may constitute unlawful pregnancy and maternity discrimination. One point to mention is that any pregnancy-related absence should be ignored in respect of any assessments relating to your employment or performance, so for example redundancy criteria or in relation to a salary review.

In terms of sick pay, sick pay given to a pregnant employee should be no less than the sick pay given to a non-pregnant employee. Accordingly, if you do receive less sick pay then you would otherwise expect, then this will need to be raised with your employer and addressed.

Maternity leave will automatically start before your chosen start date in two situations:-

If you give birth prematurely before your Ordinary Maternity Leave has started, then the maternity leave will automatically start from the day after the date of birth.

1. If you are absent from work for a pregnancy-related reason after the beginning of the 36th week of your pregnancy.

It is important to be aware that the only circumstances in which you can be forced to take maternity leave early are if you are absent for a pregnancy-related reason after 36 weeks of pregnancy or if you give birth prematurely. In other circumstances, you will either be taking annual leave or sick leave.

I hope this helps. In the first instance, I suggest that you clarify with your HR Department the current arrangements regarding sick leave, annual leave and when your maternity leave is due to start. It is important that you make clear that any absence you are currently taking is due to a pregnancy-related reason and should not be taken into account in your sickness absence record.

@Nikkinoodle84

Hi, I'm currently 29 weeks pregnant, I have had a tough pregnancy and my sickness at work has been quite high. When last I called in I was told I could be forced to take MAT leave early and would lose accrued holidays, I have checked policies and cant see anything relating to this so was just wondering where I stood? Thank you.

MB34

Thank you for your query. I understand that your query is whether your employer can pay the holiday that you have accrued since September 2019 at less than your normal rate of pay.

I believe that the answer to your question is no. Your accrued holiday should be paid according to your normal rate of pay – i.e. the rate of pay you received before you went on maternity leave. The fact that you are not returning to work after your maternity leave and/or the fact that you removed yourself from the professional body, should not affect your entitlement. This advice is based on European case law where it has been held that where a worker changes from full time to part-time work they ought to get their accrued holiday at the full time rate if they were unable to take it before they went part time. By analogy, as you cannot take your accrued holiday during your maternity leave (you can only take it after your maternity leave ends), you should be entitled to your accrued holiday at your normal rate.

Please note, however that if your maternity leave has spanned two holiday leave years, your employer could potentially pay a lower rate of pay for any contractual holiday in excess of the national statutory minimum (which is 28 days) that you have been allowed to carry over into the new leave year. This is because the only case law we have in this area relates to statutory holiday entitlement – there is no case law on what happens to contractual holiday over and above the statutory minimum in this situation.

Even so, to pay you less than your normal rate of pay for any holiday you have accrued during your maternity leave is potentially a breach of the maternity regulations. These regulations protect women who are pregnant or who are on maternity leave. Under these regulations it is unlawful for an employer to subject an employee to any detriment where the reason for the detrimental treatment is that she “took, sought to take or availed herself of the benefits of …maternity leave”. The detrimental treatment in your case would be the failure to pay your normal rate of pay for your accrued holiday.

Your employer’s actions could also potentially amount to maternity discrimination if the reason for the unfavourable treatment (the decision to pay your accrued holiday based on the national minimum wage) is because you are exercising the right to maternity leave – although I suspect your employer may argue that the reason for their decision is because you came off the register and not because you are on maternity leave.

It also is worth mentioning that, whilst I appreciate you say it was fine, you could potentially also challenge your employer’s decision to pay you only the national minimum wage for the KIT days that you undertook. Although there is no statutory requirement for an employer to pay for KIT days – it is a matter of agreement between an employer and employee – if your employer usually pays employees their normal pay for KIT days, it seems to me that you may be able to argue that their decision to pay you national minimum wage during your KIT days also amounted to a detriment. After all, at the time, your employer did not know that you were not going back to work and, given that the main purpose of KIT days is to help you keep in touch with the workplace, it seems rather perverse to just pay you the national minimum wage simply because you were not registered at the time.

I recommend that you write to your employer first to challenge their decision. If they do not reverse their decision, the next step is to raise a formal grievance in accordance with your employer’s grievance procedure.

Please note that there are strict time limits in the Employment Tribunal and if a claim is not submitted within 3 months less one day of the act that is the subject of your complaint, it can be fatal to that potential claim. I particularly refer here to the decision to pay you national minimum wage in December 2019 for your KIT days.

I hope this has been helpful.

@MB34

Hi,

I'm currently on maternity leave, was due back on 2nd March but have handed my notice in and am taking holidays so my last official day is 27th March.

To do my job I have to be registered with a professional body. I did a voluntary removal in September (as I didn't know if I was going to return or not) - if I want to be put back on, all I need to do is, do my CPD and pay by this September then I have continuous registration.
I did a few KIT days in Dec so had to tell work I’m no longer registered and HR said they’d pay me min wage (which is less than my normal wage). That was fine.

If I was returning I would’ve done my CPD and paid the registration, therefore returned to my normal post and normal pay. Work are now saying that they’ll be paying me holidays due up to last September (when I removed myself from the register) on my normal rate and the rest on min wage. I tried to argue the case with my manager but she said it was the area manager who said about it and she’d get her to call me (she hasn’t).
Is this right or should I be paid holidays on my normal rate for the duration of my maternity leave?