Any legal minds out there to help with maternity entitlement and TUPE?

[AlbertCookie]

Hi all.
The company I work for restructured the office I'm in, which is now a 'franchise' type situation. My t&c's were moved over from the large company to the new self employed owners, and all was good.
However.....my new contract does not mention maternity entitlement anywhere! So I assumed that I would still get my enhanced 12 weeks at 100% pay, then down to SMP, which I was entitled to under my original contract due to my length of service.
Having just told my employer that I'm pregnant, it appears that they want to only provide SMP and don't think that maternity entitlement has to be honoured under TUPE.
Can anyone help with where I stand?
Thanks in advance!

Why have you got a new contract? Was your enhanced maternity entitlement part of your terms and conditions? In which case it will have transferred along with all your other contractual benefits.

We had new contracts when the new employer took over the agency, but nothing else changed such as my sick pay entitlement, health care benefits and death in service - all stayed the same in the new contract.

I feel I am correct in saying to them that they have to honour my maternity pay?!

Sorry should have added, yes I have a print out of the maternity allowance under the original contract, so yes, very much part of my terms and conditions before the business changed hands.

As flowery said if the enhanced entitlement was part of your previous terms and conditions it should transfer under TUPE

Did you sign a new contract?

All your contract terms should have stayed the same, so there was no need for a new contract, just a letter saying your employment has transferred. So are you saying your previous contract contained details of the enhanced maternity pay? But this has now been removed?

They said they had to issue a new contract because I was no longer employed by "company A" and am now employed by a partnership "X & Y"
Company A set out maternity entitlement in a sort of staff handbook, and on the internal intranet. (I have a whole list of my previous entitlements printed and kept safe)
When we moved from company A to X&Y, we had a meeting where everything was discussed, and were reassured that we would not be any worse off

@leghairdontcare yes I signed a new contract. But there is no mention of any new maternity policy in it.

A maternity policy wouldn't necessarily be contractual. If it wasn't mentioned in your previous contract and the handbook didn't indicate it was contractual, then it may not have been.

Oh OK thank you :(

Did your old contract have a general clause about incorporating policies which could be found on the intranet? Or are there any terms in the maternity policy which refer to its status? What a rubbish situation.

I thought if you signed a new contract after tupe then you were accepting the new t&c's so tupe law became irrelevant.

(I am not an expert, flowery is and if I'm wrong I'm sure they'll say)

@BlueRaincoat1 I don't know. I know my very first contact with the company did because I've found a copy, but that dates back to 2003 and I'm not sure if there was ever an updated one.

It really is rubbish! I am already a high risk pregnancy due to previous premature birth, I really don't need the worry of this on top.

"I thought if you signed a new contract after tupe then you were accepting the new t&c's so tupe law became irrelevant."

Yes, you're right. But a new contract should have contained the same terms as the old one, if they issued it only to change the employer rather than to actually change the terms and conditions themselves.

Thanks for clarifying.

@leghairdontcare wow if that's true we were never told that.
The whole thing was done completely half-arsed to be fair. We were shown a spreadsheet in the initial meeting, colour coded - green for everything that was staying the same under our new employers. Were we ever given a copy of that....? No
Feel like I've been well and truly shafted. Wish that we had been a bit started and more informed at the time. :(

I thought if you signed a new contract after tupe then you were accepting the new t&c's so tupe law became irrelevant

Not quite, if they are making changes due to the transfer they will be void. It used to be the case that this applied even if changes were more favourable but I think that changed

OP it’s worth raising with them that you believe the old enhanced maternity provisions were part of your terms and conditions. Personally I think for the sake of what amounts to 6 weeks pay they’d be mugs to risk a potential claim but there’s no accounting for what some companies do

If you have a contract which incorporates the maternity policy, you might still be able to rely on it even if you have signed a new contract because any changes to a contract which are because of TUPE can be void under section 4(4) of the regulations, even if your new contract is silent on it. There are circs when this doesn't apply. How long ago was the transfer, and was there redundancies as part of the transfer?

The transfer was approx 3 years ago, there were no redundancies.

Myself and 1 other colleague were the only members of staff who this applied to, as our office was 'taken over' and merged with another office that the partners, my new bosses, already ran. So the existing staff at their primary office already had contracts in place. We were told to keep quiet about our terms as I believe we had more benefits than the other members of staff.

@ClappyFlappy
I agree, 6 weeks pay to them Is not a significant amount, to me it is quite important.

The key to this issue is whether the maternity policy is contractual. If you have a contract which says it is, or if the policy itself has words which indicate it is contractual, you may have a good basis to go to them and say the old policy was part of your t&cs, and therefore transferred. Have a good look at the wording.

@BlueRaincoat1 thank you I will see what I can find

Might be worth contacting Pregnant then Screwed pregnantthenscrewed.com/