MNHQ here: post your pregnancy & maternity work questions here for FREE legal advice from Maternity Action

[NicolaDMumsnet]

Free online advice clinic 7th - 11th November 2022 - OPEN NOW.

A big welcome back to our third clinic of the year, running from Monday 7th November till Friday 11th.

Mumsnet and Maternity Action are once again teaming up to provide an online legal clinic, offering free advice on pregnancy, maternity and parental rights at work from volunteer employment lawyers who are members of the Employment Law Association.

Whether you have a question about maternity leave, your request for flex work, your rights as a pregnant worker, or think you may be discriminated against by your employer because of being a parent, this is the place for you.

The clinic takes the form of a Q&A on this thread and will run for a week from Monday 7th to Friday 11th November. The Maternity Action team will do their best to provide all answers during that week and at the latest by the Tuesday of the following week. More information on where to go for more help once the clinic has ended is here. All past clinics are here.

How it works:

1. If you have a question about your rights at work during pregnancy, maternity or parental leave, post it here below before the 11th November. 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. Please don’t name your employer publicly if you are likely to be taking action against them in future. You can use private message to disclose information to the volunteers that you’d rather not make public.
2. Please send your name and the name of your employer by private message to @MaternityActionfreeadvice 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.
3. 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. 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.

Dear Alieds

I'm really sorry to hear you find yourself in this challenging situation. I've outlined below some advice on the administration situation, along with some guidance on maternity benefits which may be available to you, plus some information on seeking work while pregnant.

Administration of an employer and maternity pay
When a business goes into administration, employees may not lose their jobs straight away. There are a few potential scenarios.
Your role could remain in place for now. Employment contracts do not necessarily automatically end with the appointment of an administrator. If the business is bought, it is possible you could retain continuous employment unless and until the new owners terminate your contract. This process can take a few months, by which point you could potentially qualify for Statutory Maternity Pay (SMP) if
you are still employed by the 15th week before your baby is due (this will be when you are about 25 weeks' pregnant).

Alternatively, and more commonly, you could be made redundant either when your employer goes into administration, or at some point afterwards. If you are made redundant before the 15th week before your expected week of childbirth you would not qualify for SMP, but you may qualify for Maternity Allowance, see below.

If you are made redundant after you have started your SMP you will remain entitled to it for the full 39 weeks. If the company is unable to pay the SMP, then HMRC will take over responsibility for the outstanding SMP payments and you should contact the HMRC Statutory Payments Disputes Team on 0300 322 9422.

Please note, you may be eligible for a statutory redundancy payment if you have at least 2 years’ continuous service as an employee. In an insolvency situation, employees can make a claim to the Government within 6 months of the date of dismissal for redundancy. You can find out more about claiming any outstanding notice pay, holiday pay and other wages here: www.gov.uk/claim-redundancy

Maternity Allowance
If you are made redundant before the 15th week before your baby is due you can claim Maternity Allowance and it is possible that you have already met the qualifying conditions if you have been employed for the last 6 months.

You can get Maternity Allowance for 39 weeks if in the 66 weeks before your baby is due, you’ve been:

1. employed or registered as self-employed for at least 26 weeks (not necessarily in a row), and
2. earning £30 a week or more in at least 13 weeks (not necessarily in a row).

You are not required to work for the 26 weeks prior to the birth, you can use any 26 weeks of employment or self-employment in the 66 weeks before your baby is due to qualify for Maternity Allowance. If you have not yet met that qualifying condition if you now take a freelancer role you should register as self-employed with HMRC and any weeks of self-employment (or employment in a new job) will also count towards eligibility for Maternity Allowance.

Maternity Allowance is payable for up to 39 weeks at a weekly rate of £156.66 OR 90% of your average weekly earnings (whichever is less), and it is not means tested. Rates may increase slightly in April 2023.
There are a few things to note to get prepared to make a claim for Maternity Allowance:

• As a freelancer, you would need to be registered as self-employed with HMRC. This is an online process which you can do yourself.
• You will need to send payslips covering 13 weeks or 4 months when applying for Maternity Allowance. In order to maximise your Maternity Allowance payments you should send your highest payslips. You can use any weeks/months in the 66 weeks before your baby is due and they do not need to be in a row.
• If you are only relying on self-employed work you do not have to prove your earnings but you will need to pay at least 13 weeks' Class 2 National Insurance contributions in the 66 weeks before your baby is due in order to be eligible for full rate Maternity Allowance.

As mentioned, it is likely you have already met the criteria for Maternity Allowance based on your recent employment. The earliest you can claim MA is when you are 25 weeks' pregnant. It will automatically be paid from 11 weeks before your baby is due if you are unemployed at that date, otherwise you can decide when you want to stop work and start your maternity leave. Seeking work when pregnant I note you have reservations about seeking new employment when you are pregnant, and this is very understandable! Do be reassured though that all employees, casual workers, agency workers and contract workers are protected against pregnancy and maternity discrimination at work under the Equality Act 2010. This applies from day one of employment. In order to show pregnancy discrimination you would need to show that you have been treated unfairly because of your pregnancy. Obviously this can be difficult to evidence when applying for new jobs and you should seek further advice if a job offer is withdrawn after notifying a new employer of your pregnancy. A new employer would have to provide you with up to 52 weeks' maternity leave but they would not have to pay Statutory Maternity Pay if you are already pregnant when starting the job as you will need to apply for Maternity Allowance as above.

If you are successful in finding another role (temporary or permanent) you do not legally have to tell your employer that you are pregnant until 15 weeks before your expected due date when you should give notice of the date you want to start your maternity leave. Some candidates choose to tell potential employers about their pregnancy during the recruitment process, and some prefer not to disclose this for many different reasons. Whatever your personal decision, you will need to tell a new employer about your pregnancy if you have health and safety concerns about your job and if you need paid time off for your antenatal appointments.

I hope this is helpful and wish you all the best.

Dear Emjkin

Thank you for your email.

From the situation you describe, you may have grounds for complaint against your employer for failing to observe your rights on returning from maternity leave, however, this may depend on your employment status. You have mentioned that you have a zero hours contract and this may state whether you are a worker or an employee. If your contract is not clear or if you think that you have grounds for arguing that you are an employee you should seek further specialist advice.

You need to be an employee to be eligible for maternity leave and to have the right to return to the same job, however, even if you are a worker you have some protection against discrimination and I will set out your rights below.

Your rights on returning from maternity leave - if you are an employee
Your rights on returning to work from maternity leave vary according to whether you took ordinary maternity leave (OML) or additional maternity leave (AML).
These rights are contained in the Maternity and Parental Leave etc Regulations 1999.

OML is 26 weeks so if you only took OML or returned before the end of OML, you were entitled to return to the same job in which you were employed before your absence.

Your terms of employment must be the same as, or not less favourable than, they would have been had you not been absent.
The only exception to this is if a redundancy situation has arisen – which basically means that your employer no longer has a requirement for your role or requires fewer employees to do the work you were employed to do.
AML is 52 weeks.

If you returned to work after AML or before the end of AML, you are generally entitled to return to the job, on the same terms and conditions as before you went on maternity leave UNLESS there is some reason (other than redundancy) why it is not reasonably practicable for your employer to permit you to return you to the same job (e.g. there has been a reorganisation).

If it is not reasonably practicable for you to return to the same job then you are entitled to return to a different job which is both suitable for you and appropriate in the circumstances, and the terms and conditions must not be less favourable than they would have been had you not been absent.

It goes without saying that if there is a redundancy situation and an employee’s role no longer exists or it is not reasonably practicable for them to return to the same job (after AML), the employer has to consult with the employee about this before their return from maternity leave, and offer any available, suitable alternative position to the employee.

Your situation
It is clear from what you describe that you have not been allowed to return to the same job in which you were employed before your absence.
Although you do not have fixed hours, you have described how you had a regular number of hours of teaching work and assessment work prior to your maternity leave, which suggests there was an expectation of both parties (you and your employer) that you would be given a certain number of hours a week and that at least 10 hours would be teaching.

If you are an employee, you were entitled, therefore, on your return from maternity leave to be given the same number of hours of work and a similar proportion of teaching work to assessment work, particularly given the difference in pay for this work.

As mentioned above, the only circumstances in which your employer could justify not allowing you to return to the same job as before is if there was a redundancy situation or if it was not “reasonably practicable” for you to return to your “old” job.

Neither of these circumstances appear to apply to the situation you have described, and I assume your employer has not given you any explanation as to why your job has changed or consulted with you about any redundancy situation.

From what you describe, your employer has also changed your terms and conditions of employment without your consent, which is a breach of contract and could potentially give rise to a claim for constructive unfair dismissal.

You also potentially have grounds to bring a complaint for maternity discrimination and/or sex discrimination because your job has been changed, to your detriment, after taking maternity leave. If your contract is as a worker rather than as an employee you have protection against discrimination if you can show that the reduction in hours is because of your maternity leave rather than other factors or that you are the only one affected.

Next steps
I recommend that you try and resolve the situation informally first by speaking to your manager or HR about your concerns.
You should do this as soon as possible because if you leave it too long, your employer may try and argue that you have accepted the situation by continuing to work for them.
If you are unable to resolve the matter informally (and quickly), your next step would be to raise a formal grievance.

All employers should have a formal written grievance procedure and you should ask for a copy of it.
You will need to put your concerns in writing, starting by outlining how you were entitled to return to the same job, on the same terms and conditions, when you returned from maternity leave but since returning, not only have you been given significantly fewer hours, but you have also been fewer teaching hours, both of which have resulted in you receiving significantly less pay.
You will need to make it clear that you did not and do not agree to this change to your contract.
You should then go on to outline what outcome you want from your grievance.
After you put in your grievance, you should be invited to a formal meeting so that you can discuss your grievance in more detail.
Your employer should then investigate your grievance and provide you with a written outcome and a right of appeal against that outcome.

I anticipate that your employer may argue that your contract does not guarantee you a certain number of hours or a certain type of work (teaching or assessment) and therefore your role has not changed since you returned from maternity leave.

However, I do not believe this argument holds weight since, as mentioned above, you clearly had an expectation, based on past practice, that you would be given more hours than you are currently being given and more teaching work.
Even if your employer were to argue that you had not worked there long enough to give rise to any expectation that you would receive a minimum number of hours (you mention you did not qualify for SMP as you hadn’t worked there long enough), it does not explain why your hours have been cut so dramatically since returning from maternity leave, unless everyone’s hours have been cut, which I assume is not the case.

In anticipation that your employer will make these arguments, I suggest that you prepare a spreadsheet/similar document that shows what hours and what type of work you did before your maternity leave and then a separate spreadsheet showing your hours/work since returning from maternity leave – to demonstrate the stark contrast.

If you are unable to resolve your grievance satisfactorily, I strongly recommend seeking legal advice about your case (and particularly about your employment status) before taking any further steps, and to do so without delay, as there are strict time limits for pursuing any type of employment claim.

I mentioned a potential claim for constructive unfair dismissal above, however, these types of claim are difficult to bring and are time-sensitive.

Further, to be eligible to claim constructive unfair dismissal, in most cases, you must have been employed for at least two full years (which you may not have).
However, if an employee’s “dismissal” (which includes a constructive dismissal) is connected to the fact that she has availed herself of the benefits of statutory maternity leave, this is an automatic unfair dismissal, which means the employee does not need to have 2 years’ service – so you may well be eligible in any event.

Similarly, discrimination cases can be quite complex so it is important to seek some specific advice about your case before you make any decisions about your employment.

I wish you all the very best and I hope that you manage to resolve matters with your employer.

Thank you so much for this advice it’s so appreciated :)

Dear Wills1907

Yes, you can count all periods of employment and self-employment within your 66 week test period towards the 26 week qualifying period for Maternity Allowance. This also includes periods when you were on maternity leave (regardless of whether you were receiving maternity pay) as you remained employed during maternity leave.

You are also employed during annual leave (incl. school holidays) and sick leave (you don't need to physically be in work). If you were registered with an agency for supply teaching you can include periods in which you were available for work but no work was offered.

Looking at the dates you have given, this suggests that you have already met the qualifying conditions for Maternity Allowance for your new baby. Please note that in order to receive the maximum amount of Maternity Allowance you should send payslips covering 13 weeks or 4 months and it is very important to send the payslips with your highest earnings. You can choose any weeks/months in your 66 week period and they do not need to be in a row.

You can apply for Maternity Allowance once you are 25 weeks' pregnant and you can choose when you want your MA payments to start. The earliest it can start is 11 weeks before your expected week of childbirth and you can work up to the birth if you wish to. You can ask your local JobCentre Plus to send you a claim form or download it here: www.gov.uk/government/publications/maternity-allowance-claim-form

I am pregnant and meant to be going on maternity leave from work next year. I have thoroughly read their maternity policy, most of it seems very standard. Apart from the pension section which says:

“No paid contributions will be made to the employee’s pension during the unpaid maternity period. However, to ensure continuity of pensionable service, the amount owed during the unpaid period of maternity leave will be reclaimed when the employee returns to work.“

I will have a phase of not being paid due to me not working their long enough to be entitled to the enhanced maternity package -lm just getting statutory. Problem is by my calculations is that might mean up to a month of no pay despite being back at work. This doesn’t seem right to me and l can’t afford to work for free! Especially due to the cost of childcare and us having twins

I contacted HR a few weeks ago but no reply as yet

Hi, thank you very much for your help.

I’m currently on maternity leave and the business I work for recently announced they are significantly increasing the financial maternity leave package. The new financial support package is only available to those taking leave from a set date which is after my maternity leave has started meaning that I won’t benefit from the changes. I was wondering if it’s possible to challenge this?

Dear CVCG

Unfortunately occupational maternity pay (anything on top of Statutory Maternity Pay or Maternity Allowance) is a matter for individual employers and they can attach their own terms and conditions such as length of service or return to work conditions.

I suggest checking your employer's new policy to see if it applies retrospectively but, if not, I'm afraid that you will be unlikely to have any contractual right to rely on the new maternity leave policy as its implementation is post your maternity leave start date. When policies are introduced that have a financial benefit, employers usually introduce a cut-off date for those who can benefit.

Nonetheless, there are good commercial arguments for companies to provide good terms and conditions and there is no reason why they could not retrospectively apply the new policy to all those who are currently on leave, particularly if the aims of the new policy are to afford greater support and financial aid to new mothers.

You may also want to seek confirmation that this approach has been applied to all on maternity leave as I would be surprised if you are the only employee on maternity leave who falls on the wrong side of the policy taking effect. It would also be sensible to ask your employer whether they considered applying the policy retrospectively when deciding on the implementation date.

Dear Sanon95

Thank you for your enquiry. Your employer is under an obligation to protect your health and safety and to carry out a risk assessment. It appears that they have done this and have identified that your role as an HGV driver is not safe for you to carry out during pregnancy. You have been offered an office role as an alternative position which you feel is not suitable.

I note that you are saying that if an adjuster clip is added to the seat belt you feel that your position as an HGV driver could be carried out. I suggest seeking advice from the Health and Safety Executive. You can contact them via their website: www.hse.gov.uk/contact/tell-us-about-a-health-and-safety-issue.htm or by telephone on 0300 003 1647. If you raise a concern through HSE they will contact your employer and may be able to help you resolve it.
You may also want to seek further advice from your midwife or GP as to whether it is safe for you to continue driving in the late stages of pregnancy and what adjustments could be made. Your GP may be able to issue a 'fit note' for you which sets out the adjustments needed which would enable you to continue working in your normal role.

If HSE and/or your health professionals consider that it isn't safe to continue working as an HGV driver in the late stages of pregnancy then your employer's obligation is to provide safe suitable alternative work. This must be on terms and conditions that are not less favourable than in your current role. This is likely to mean the same hours and pay as your current role so there could be an argument that you are entitled to do the role during your normal hours or to finish at 3.30pm without loss of pay.

Any alternative role must also be safe for you to do, so if the initial risk assessment decided that it was unsafe to drive in rush hour, your employer must continue to allow you to travel outside rush hour but, again, without loss of pay if you work fewer hours as these adjustments have been made for health and safety reasons.

If your employer had no safe suitable alternative work they would have to suspend you on full pay. However, please note that in these circumstances you would be absent from work because of pregnancy and your employer could then trigger your maternity leave and pay from 4 weeks before your expected week of childbirth which I understand you are keen to avoid.

Health and safety rights are difficult to enforce and any failure to provide suitable alternative work or to provide a maternity suspension would be decided by an employment tribunal. Unfortunately it is difficult to say whether providing admin work would be considered 'suitable alternative work' for an HGV driver but it is possible that as admin or office based work may often be the only alternative that an employer can offer in the circumstances that this may be considered suitable.

You have also asked a question regarding being provided with a private hygienic room for laying down.
Your employer should provide you with rest facilities as you are pregnant, as well as for nursing mothers. Being in the office, your employers should identify somewhere for you to be able to rest e.g. if there is a separate, private office.
I would specifically ask if there is anywhere that you are able to do this.

I would suggest trying to resolve this informally wherever possible by asking for a meeting with a manager and/or HR to discuss the health and safety issues, the role you have been given and your hours of work.

You have mentioned that you have not qualified for Statutory Maternity Pay and I wanted to be sure that that is the case. You can find an online calculator here if you want to check your entitlement: www.gov.uk/maternity-paternity-calculator

If you have met the qualifying conditions for SMP your employer must pay it and if they refuse you can claim your SMP from HMRC Statutory Payments Disputes Team on 0300 322 9422.

You will have qualified for SMP if you were employed by your current employer for the first 26 weeks of your pregnancy and you earned at least £123 per week in the 8 weeks (if paid weekly) or 2 months (if paid monthly) before the end of the 15th week before your baby is due. SMP is paid at 90% of your average weekly earnings for the first 6 weeks and then £156.66 for 33 weeks. If you don't qualify for SMP you can claim Maternity Allowance.

I wish you all the best.

Hello I'm a teacher and 9 weeks pg, for the last month I have been signed off due to pregnancy related health issues. I am still feeling really poorly and wonder how much longer I can continue to be signed off sick before I could potentially be at risk of losing my job. Also what is the earliest I can begin maternity leave and do I need to notify the government to get stat mat leave once my paid runs out. Thank you!

Thank you to everyone who has posted, we do hope that you have found the clinic helpful and informative. All posters who have sent through their details have been allocated and will be responded to by Tuesday afternoon at the latest.

Dear Dewintergarden

I am sorry to hear about your pregnancy-related sickness. It is important to ask your GP to note on your sick notes that your sick leave is pregnancy related as your employer must count it separately to other sick leave so that you are not disadvantaged in relation to disciplinary, redundancy or sickness management procedures.

You will be entitled to whatever sick pay your employer normally provides and you should check your contract or your staff handbook. As you have mentioned that you are a teacher, you may also be entitled to occupational maternity pay and you should check your employer's maternity policy. If you have not been provided with these policies you should ask your employer to send them to you so you can plan your maternity leave.

You will need to give your employer notice of the date you want to start your maternity leave and your MATB1 maternity certificate by the 15th week before your baby is due or as soon as possible afterwards. The earliest you can start maternity leave is 11 weeks before your baby is due. It is up to you to decide when you want to start your maternity leave and pay but if you are still off work with a pregnancy related illness your employer can trigger your maternity leave and pay from 4 weeks before your expected week of childbirth (but not before). You can remain on sick leave and any sick pay your employer provides up to the start of your maternity leave.

In order to qualify for Statutory Maternity Pay (SMP) you need to earn at least £123 per week on average in the 8 weeks (if you are paid weekly) or 2 months (if you are paid monthly) before the end of the 15th week before your baby is due. As mentioned above you may also qualify for some occupational maternity pay from your employer (this will top up your SMP or Maternity Allowance).

If you have a period on Statutory Sick Pay in approximately weeks 18 - 26 of your pregnancy, you may not be able to qualify for SMP. If this is the case you should apply for Maternity Allowance instead. There is more information on SMP and how to apply for Maternity Allowance if you need it here: maternityaction.org.uk/advice/maternity-pay-questions/

I wish you all the best.

Dear Tangledandconfused

Thank you for your query and congratulations on your new baby!

It is a complicated situation so I am not surprised that you have many questions.

It is encouraging that the new company appear to be supportive of your continuing maternity leave and prepared to wait for you to start the role.
I have set out responses to your queries below using the same numbering for ease of reference:

1.If you do any paid work for the new employer within the 39-week SMP period, you would lose any entitlement to receive SMP from your old employer from that point in time.
If that happens, you are required to inform your old employer to stop paying your SMP and to repay any overpayment that has been made to you.
However, if you do not do any paid work for the new employer, you are entitled to continue to receive the full 39 weeks SMP from your current employer.
This is the case even if you have resigned or your employment with them has otherwise ended.
Your employer can either continue to pay the SMP to you on a weekly basis or can pay you the remaining balance in a lump sum.

2.It would be unlawful for your new employer to remove your role because you were on maternity leave.
However, if there was a legitimate reason for a restructure which was not related to your maternity leave, the role could be removed prior to you starting in it.

Your rights at that point (and the level of protection you would have) would depend upon whether (i) your employment with the new employer has officially started (even if you remain on leave) and (ii) you continue to be classified as being on maternity leave in the new role.

Generally speaking, whilst on maternity leave, in the event that your role is made redundant, you are entitled to be offered a suitable alternative vacancy (if there is one) in priority to others. If there are no suitable alternative roles you can be made redundant during maternity leave. However that right will only apply if your employment with the new employment has actually started (even if you are still on leave and not doing any work at that time) and you are legally on maternity leave.

If, for example, you have signed the contract but have agreed a later employment start date, you would not have the protection of this right if the role was to be removed before that date as you would not be employed by them at that time. You also only have the right of priority to be offered another suitable role if you are actually on maternity leave.

If you are simply on unpaid leave, you would not have this protection.
I have set out more information on this point in response to question 4 below. Please also note that you need at least 2 years' service to qualify for a redundancy payment.

3.This will depend on whether there are any restrictions on this your employment contract/handbook with your current employer.
During maternity leave, you will still be an employee of your current employer and your employment contract will continue to apply.
Some employment contracts will have restrictions on employees accepting second jobs or where there might be a conflict of interest and require you to inform your employer about this or even to ask their permission.

Subject to this, it would be open to you to accept the role and agree any start date you like with your prospective new employer; there would be nothing to stop you signing a contract now with a start date for June 2023.
You would not have to give notice to your current employer until the requisite amount of time before you wanted your employment with them to end.
If you accept a new contract but with a start date after your current role has ended (on the basis that you will give sufficient notice to bring your current employment to an end before the new start date), there would not any requirement to tell your current employer about the new role, or to ask their permission.

However, you should be aware that things can change; the longer the gap before your new employment officially starts, the greater the risk that there may be a restructure or change in circumstances which would mean that the new role is no longer available.

As noted above, if you do any paid work for your new employer before the end of your 39-week SMP period, you will lose the right to continue to receive SMP.

1. You are allowed to take up to 52 weeks’ maternity leave with your current employer.

The law is silent as to whether maternity leave can be “transferred” between organisations – likely because this is quite an unusual situation.
However, in order to be entitled to maternity leave, you were required to give your current employer the requisite notice by the 15th week before your expected week of childbirth or as soon as reasonably practicable.
Clearly you won’t have done that in respect of the new employer although arguably you have notified them at the earliest opportunity about your maternity leave status and they have agreed to treat you as on maternity leave or to delay your start date until your maternity leave would have ended with your current employer.

I note that your new employer has advised that they would allow you to start the new role and they would put you down as being on maternity leave, however, as it is not clear legally whether you would be on 'maternity leave' with your new employer, there may be difficulties in relying on some of the protections that exist in relation to redundancy or discrimination.

In summary, the key things to be aware of are as follows:
If you wish to accept the role immediately, ensure that it is agreed in writing that you will start on maternity leave and that they accept that you have given the correct (albeit late) notice for maternity leave.

Be aware that things can change; the longer the gap before you start your new role (i.e. the gap before you become an employee of the new organisation), the greater the risk that there may be a change in circumstances which would mean that the new role is no longer required.

You should factor this in to your decision-making about when to start the role.
Alternatively, you may want to remain employed by your current employer throughout your maternity leave and agree a later date for your contract to start in the new role. If you leave your current employer, you will be entitled to receive payment upon termination for holidays which have accrued up to the end of your notice period.

You remain entitled to your SMP for up to 9 months unless you do any work for the new employer within this period regardless of whether you remain employed in your current role or you leave to start your new job (on a period of agreed leave) during the SMP period.

Maternity Action have some helpful guidance for changing jobs during maternity leave – please see the information at the following links:

maternityaction.org.uk/advice/rights-for-parents-with-more-than-one-job/

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

I wish you all the best

Dear Namechange543212345

Firstly, we are sorry to hear that you have found yourself in this situation. We set out below some information about the legal tests you must satisfy in relation to bringing legal claims in relation to flexible working requests, constructive dismissal and indirect sex discrimination. We also provide information about the time limits for bringing any such claims and links to some useful websites.

Claim under flexible working regime
Section 80 Employment Rights Act 1996 (‘ERA 1996’) sets out your right to request flexible working. The legal right is to request to work flexibly, but not necessarily to have the request granted.

You have told us that your employer has identified one of the eight business-related reasons set out in the flexible working regime for rejecting your request (specifically, they have relied on “detrimental impact on quality”). Under the flexible working legislation, the employer is allowed a lot of scope in terms of selecting one of the eight reasons for rejecting a flexible working request. The statutory regime does not require the employer to include a detailed explanation of why that ground applies. Generally, the Employment Tribunal (‘ET’) is not allowed to evaluate the reasons the employer is relying on to reject your request and cannot substitute their own view about whether the request should have been granted (because it is for employers to make commercial decisions about how they run their business – or in this case, their school). The employer is not required to put forward alternative proposals which might work better for the business. This does significantly limit the level of scrutiny to which an ET can subject an employer’s decision to reject a flexible working request.

There are some fairly limited grounds for making a claim to the ET under the flexible working legislation itself, under section 80H ERA 1996 e.g. a remedy (of up to 8 weeks’ pay (capped at £571 per week) and/or a reconsideration of your flexible working request) may be available if you can show your employer did not deal with your request in a reasonable manner and / or they based their decision on incorrect facts. Essentially, the ET is limited here to considering whether your request was taken at all seriously by your employer (i.e. whether they met to discuss it and allowed you to appeal, not whether their decision was reasonable) and / or whether their decision was based on correct facts.

It is possible you could try and argue that your employer did not act reasonably and / or based their decision on incorrect facts, if you were able to put forward compelling evidence that your employer did not have a shred of evidence that they carried out a proper enquiry into your request. We are basing this view on your statement that you have carried out the same flexible working pattern before whilst in the same role, and that your employer confirmed during this recent flexible working request process that there had been no detrimental effect to quality of service when you previously worked flexible hours. It is not clear to us from your enquiry whether or not there has been any change in circumstances to your role or within the wider school which do not make the two situations comparable (e.g. have the responsibilities or volume of work in the leadership role changed since you last worked flexible hours? Is there still somebody available to job share the leadership role with this time around, to pick up the work you would be unable to complete during part time hours? Is the person appointed to start in January 2023 going to be doing the exact role / working pattern that you requested, and is their appointment permanent?). This may be something you want to consider when deciding whether or not you wish to pursue a claim in the ET under the flexible working regime (particularly given the limited remedy available under this type of claim). You should also consider what evidence you can rely on to support your arguments and convince the ET that you are legally in the right (e.g. the content of any letters / emails / meeting notes /contemporaneous diary or phone call notes, relating to your flexible working request).

Claim of constructive dismissal
You are potentially eligible to submit a claim to an ET for constructive unfair dismissal if you have resigned from your job and have worked for your employer for two years. We are assuming that you have worked for a minimum of two years, since you have taken at least two maternity leave periods.
A constructive unfair dismissal occurs where an employee resigns in circumstances where:
(a)
There has been a fundamental breach of contract by the employer which is sufficiently serious to justify the employee resigning. In other words, your employer has done something so bad that it has broken the term of mutual trust and confidence that exists between you both, to the extent that you have been put in a position where you have no other option but to resign. The term of mutual trust and confidence is implied (i.e. ‘read in’) into every employment contract, even if it is not explicitly written down.
(b)
The employee must resign in response to that fundamental breach; and
(c)
The employee must not delay too long in resigning.
In the context of flexible working requests, you would need to demonstrate that your employer had committed a fundamental breach by essentially conducting itself in a manner when dealing with your request which was so poor that it broke down the relationship of trust and confidence between you both. Because the statutory regime gives the employer a lot of scope to be able to reject the request for business-related reasons (see section on ‘claims under flexible working regime’ above), it can be challenging to show that a rejection of a request to work flexibly under the statutory regime amounts to a fundamental breach. It also particularly challenging because the burden of proof is on you as the employee to show you were entitled to resign and treat your employment as at an end (i.e. it is your job to put forward compelling evidence that all 3 elements of the constructive dismissal test set out above are satisfied).

The key facts you have set out in your enquiry which you would be relying on to show the school irretrievably broke the trust and confidence you had in them (and so you were entitled to resign and claim constructive dismissal) are:
(a)
Your employer rejected your flexible working request despite confirming to you that your previous flexible working arrangement (which we understand to be the same as the pattern you are requesting now) had no detrimental impact on the quality of service delivered; and
(b)
You were open to discussing alternative proposals to work flexibly (including e.g. working part time hours as a classroom teacher but without your additional leadership responsibilities), yet the school subsequently withdrew a verbal offer to allow you to return to work on this basis.

Note that it was not known to you at the time of resigning that someone doing your maternity cover had been asked to stay on a part time basis doing the exact role / hours you requested, so this will cause difficulties as it wasn't information that you relied on when making your decision to resign.
You said that you resigned after your employer confirmed that the verbal offer of alternative flexible working arrangements (i.e. part time hours as a classroom teacher only) was withdrawn, but please note that any delay in resigning after this decision was communicated to you might risk the school arguing that you had delayed too long in resigning (element (c) of the constructive dismissal test).

Although it can be difficult, there has been some case law where employees have been successful in showing that an employer’s rejection of their request to work part time after returning from maternity leave did amount to a fundamental breach of contract entitling them to resign and claim constructive dismissal. An example case is Shaw v CCL Ltd. Here, the employee asked to reduce her hours as an Area Sales Executive from 5 days to 2 days due to childcare reasons. The employer rejected this request (partly because they thought it would be difficult to appoint part time workers to cover the remaining hours). The Tribunal thought this was discriminatory on the grounds of sex (see further below) and also therefore amounted to constructive unfair dismissal.

If you were successful in claiming that you were constructively unfairly dismissed, you would be entitled to a financial remedy. This would be made up of a basic award (calculated using a formula which references your length of service, age and weekly pay, similar to a redundancy pay calculation) and a compensatory award (which is an amount that the ET thinks is just, usually capped at 1 year’s salary). Any compensatory award ordered by an ET to be paid to you would take into account your new earnings. So, the ET would look at the difference in earnings between your old role and new role when deciding what, if any, compensation was appropriate. This is something to bear in mind when considering whether you think it is worthwhile bringing an ET claim (e.g. comparing the potential remedy available and risks of winning or losing, against the potential time and stress to you of bringing and conducting an ET claim whilst managing your other personal and professional commitments).
Please note that submitting a claim for constructive unfair dismissal is time sensitive: it must be done no later than 3 months less a day from the date your job ended (i.e. the last day of your notice period, or the day you resigned if you did not give notice).

Indirect sex discrimination claims You might be able to argue that the rejection of your flexible working request amounted to indirect sex discrimination. You would need to demonstrate to the ET that:

The school applied a criteria (the requirement to work full time) to you that put you (and other women generally) at a particular disadvantage (because you and women generally tend to take on more childcare responsibilities and therefore are more likely to need to work part time hours); and

The school cannot put forward any justifiable reasons why they applied this criteria to you.
(Sections 11 and 19, Equality Act 2010)
You would be relying on the key facts set out above (e.g. the fact that they rejected your request despite confirming that a previous working pattern that was the same as the one you were now requesting had had no detrimental impact on service quality) and any written documentation you had to support these facts.
If you were successful in your claim for indirect sex discrimination, the ET might award you a financial remedy – for example, to compensate you for injury to your feelings caused by the school’s treatment of you. Injury to feelings claims are usually awarded within a range between £990 and £49,300 (although awards at the top end of the range are usually reserved for extremely serious acts of discrimination e.g. physical violence over a sustained period).
The time limit for bringing an indirect sex discrimination claim is within 3 months of the discriminatory act – in this case, the relevant act would probably be the rejection of your flexible working request appeal.

More information about indirect sex discrimination can be found on the Equality Human Rights Commission website: www.equalityhumanrights.com/en/multipage-guide/dealing-discrimination-employment

ACAS Conciliation
Please note, if you do decide to make a complaint to an ET in relation to any of the claims mentioned above (s80H flexible working claim and / or constructive unfair dismissal claim and / or indirect sex discrimination claim) before submitting a claim to the ET, you will need to first contact ACAS (Advisory, Conciliation and Arbitration Service) to attempt early conciliation. This is when ACAS will speak to yourself and your employer about the dispute, which may give you the chance to come to an agreement without having to go to the ET. Details about early conciliation can be found on the ACAS website: www.acas.org.uk/early-conciliation

Legal Advice
It is free to submit claims to the ET (and to participate in ACAS conciliation). However, putting together and running ET claims under the headings mentioned above can be complex and time consuming. We would recommend that you seek legal advice if you are considering issuing a claim. Before speaking to a lawyer, it is helpful if you can write down the key events relating to your complaint(s) in chronological order, and to collate any relevant paperwork in date order as well. The ACAS website has some suggestions of places where you can seek further advice: www.acas.org.uk/getting-legal-advice

I wish you all the best.

Dear Kenzi18

Firstly, it would appear that your employer has varied the terms of your contract during your maternity leave, which it can only do with your agreement. You have the right to return to the job you were doing immediately before the start of your maternity leave. This includes the same days/hours that you were previously working. If you want to return to the same working arrangement and your employer is changing the terms of your contract I would start initially by asking for a meeting with your manager and/or HR to discuss your return to work. If you are unable to resolve things informally, you can raise a grievance objecting to this change in your contractual terms and requesting that your working arrangements revert to those you had agreed and can manage. If your employer agrees to this or you can come to a workable arrangement you may be able to return to work and will not have to leave unless you want to.
If you want to change your hours, days or place of work after your maternity leave or if your employer is now insisting on 3 days in the office for all staff, you will need to make a flexible work application to ask for the working pattern that you need in order to manage your childcare responsibilities. Your employer must consider your request reasonably and can only refuse for one of the 8 legal business reasons. A policy of insisting that all staff work in the office 3 days a week may indirectly discriminate against those with childcare responsibilities or it may discriminate against those unable to work in the office because of health conditions unless your employer is able to justify it.

You should submit a flexible work application at least 3 months before the end of your maternity leave wherever possible to give your employer time to meet with you to discuss it and to consider it properly. If you are coming to the end of your maternity leave you should submit your flexible work application as soon as possible and agree further time off with your employer e.g. unpaid leave or accrued annual leave.
There is more information on how to make a flexible work application on the ACAS website here: www.acas.org.uk/making-a-flexible-working-request

Maternity Action also has information about asking for child-friendly working hours and indirect sex discrimination claims: maternityaction.org.uk/advice/child-friendly-working-hours/

Turning to the return to work condition attached to your occupational maternity pay. Please note that an employer can only ask you to repay the additional maternity pay that they provided on top of your Statutory Maternity Pay (SMP) or Maternity Allowance. Your employer cannot ask you to repay SMP, including the first 6 weeks at 90% of your average earnings.

The policy you refer to is rather ambiguous in terms of your obligation to work for at least a month post maternity leave. It does say that you must “intend” to return to work, which would imply that if you have serve notice immediately on your return you would not comply with this part of the requirement.
However, the remainder of the policy would otherwise be complied with if you were to work for your notice period of 3 months as only 1 month of effective service is otherwise required, which you would have done if you work your notice period after maternity leave has ended.

It looks like the intention of the policy is to prevent employees who have benefitted from additional company maternity pay using annual leave and sick leave during the 3 month return to work period. Your employer is insisting on at least one month back at work, however, as the policy is not clear it would be advisable to ask your employer for their interpretation of this requirement so that you are better able to make a decision on how you would like to proceed with your return to work.

I hope that helps.

Dear Niki04

I am sorry to hear about your pregnancy-related sickness.
Firstly, in relation to your SSP, SSP is subject to tax and National Insurance. Unfortunately I can't advise on your tax but HMRC can advise further on whether you have been paid the right amount of SSP : www.gov.uk/statutory-sick-pay/what-youll-get

If you have paid more tax than you should have during the 2022/23 tax year you will be eligible for a tax rebate from HMRC.

If you now feel you are well enough to return to work, you should notify your employer of your pregnancy in writing (even if they are already aware) and ask for a risk assessment on your return to work. You are entitled to an individual risk assessment and to have reasonable adjustments to your working conditions and hours of work. They should make adjustments to your role so that you are not standing for long periods and ensure you have sufficient rest breaks. It may be helpful to speak to your GP or midwife and ask for a 'fit note' or letter stating that you are well enough to work and the adjustments that you consider are necessary to remove any risks to your health and safety.

If your employer is unable to make your job safe they must provide safe suitable alternative work or, if none is available, a maternity suspension.
There is further guidance for employers on the HSE website here which you can send them if necessary: www.hse.gov.uk/mothers/

Finally, I wanted to make you aware of your maternity pay position. In order to qualify for Statutory Maternity Pay (SMP) you need to earn at least £123 per week on average in the 8 weeks (if you are paid weekly) or 2 months (if you are paid monthly) before the end of the 15th week before your baby is due. Unfortunately as you have had a period on SSP and you are already 22 weeks, you may find it difficult to qualify for SMP. If this is the case you should apply for Maternity Allowance instead.

You will need to give your employer notice of the date you want to start maternity leave and your MATB1 maternity certificate by the 15th week before your baby is due or as soon as possible afterwards. They will work out whether you qualify for SMP. There is more information on SMP and how to apply for Maternity Allowance if you need it here: maternityaction.org.uk/advice/maternity-pay-questions/

I wish you all the best.

Dear EL8888

Thank you for your query. Unfortunately it is unclear what this section of your policy means but I will set out the rules on pensions during maternity leave.

During the paid part of maternity leave you are entitled to pension contributions from your employer based on your normal pay. This is normally the first 9 months of maternity leave.

Your pension contributions during maternity leave must be based on your actual pay so there will clearly be no contributions from you during your unpaid maternity leave.

Once you return to work it is unclear what the 'amount owed' relates to and I suggest that you ask your employer to clarify whether they are referring to the employer contributions and/or the employee contributions. If there is an option to make additional contributions to cover a period of unpaid leave they should also make it clear that this is optional and explore when and how you would like to make those payments so that you don't have a large deduction from your first month's salary.

If HR have been unable to advise so far, you may find it helpful to speak to payroll. If deductions are made without your consent and you think they are incorrect you can make a claim for unauthorised deduction of wages. You should start a claim through ACAS within three months from the date of the deduction.

I hope that helps.

Dear teacherparent2022

Thank you for your query. I am not sure when your maternity leave is due to end but please note that your maternity leave is with your current employer and you can only do ten KIT days for this employer.

You can still work for a new employer in some circumstances and the rules are as follows. If you do any paid work for a new employer who did not employ you during the 15th week before your baby is due, you will need to tell your current employer to stop paying your Statutory Maternity Pay (SMP). It may be best to arrange to do a few days' work for your new employer once your 39 week SMP period has ended.

Please also note that if you have accepted a new job with a new employer while you remain employed and on maternity leave with your current employer, you should check your current contract to see whether there are restrictions on accepting a second job or whether there could be a conflict of interest. Your current employer's contract may also require you to notify them or ask their permission to take on a second job even if this will just involve working a few days with a new employer.

Any SMP you have received is not repayable if you decide to leave your job (unless you start paid work with a new employer as set out above) but any additional occupational maternity pay provided by your employer may be repayable and you should check the terms of your employer's maternity policy.
I wish you all the best.

Dear Bumblebott

Thank you for your query. Withdrawing a job offer because of your absence on maternity leave may amount to unfavourable treatment because of maternity leave and may give rise to claims for maternity or sex discrimination. In order to pursue a claim, you would need to raise a grievance with your employer first and start early conciliation through ACAS within 3 months (less one day) from the date of act of discrimination.

However, it is important to be aware of the risks as the outcome of tribunal claims is never certain and discrimination claims are particularly complex. I suggest trying to resolve it informally initially in order to keep a good working relationship with your employer wherever possible especially if you want to keep open the possibility of being offered the promotion in the future.

If it is not possible to resolve it amicably you may want to seek further legal advice and explore whether you have any options for legal representation. You should speak to your union if you are in a union or check whether you have legal expenses cover on any home or car insurance.
We have more information on where to go for more help and the process for starting tribunal claims here: maternityaction.org.uk/where-to-go-for-more-help-legal-clinic/

I wish you all the best.