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

[NicolaDMumsnet]

Free online advice clinic 6th March - 10th March 2022 - OPEN NOW.

A warm welcome to the first clinic of the year!

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 6th to Friday 10th of March. 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:

• If you have a question about your rights at work during pregnancy, maternity or parental leave, post it here below before the 10th March. 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.

• 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.

• 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

Hi,

I am looking for some advice please.

I am currently 31 weeks pregnant and am due to start my maternity leave on 17th April, unfortunately I have this week advised my employer that due to my partners promotion within the Armed Forces we will now be relocating overseas in the summer for a period of 2 years.

Unfortunately my current employer is unable to support me working from another country and therefore I will not be able to return after my maternity leave. They have now suggested so that they can recruit my role on a permanent basis that I hand in my resignation effective as of next month.

Should I resign they have confirmed that they will be pay me a lump sum of my SMP, A/L and pension contributions.

Please can you confirm whether I should be entitled to received pay for the bank holidays also, and whether by taking a lump sum I will be penalised in anyway? Is resigning the right thing to do?

Any advice would be really appreciated.

Thanks in advance

Hi,

I am currently on a fixed term contract ending in September 2023, I am due in August 2023, I have been working for the organisation since October 2021. I am entitled to the enhanced maternity pay as they "will pay enhance maternity pay to qualifying staff who have at least 26 continuous service as of the 15th week before expected week of childbirth".

Everyone else in my office on a fixed term contract has had their contracts extended at the end of the term, by a year or two. I was advised before Christmas this was highly likely for me too that they wanted to keep me etc etc. However, this was all verbal and in fairness no promises were made this was discussed all 'funding dependant'.

It's starting to look highly likely my contract will not be extended - though I have heard this informally and confidentially - no official communication has been made. I understand this to be perfectly legal regardless of my frustration.

The maternity policy stipulates that staff on fixed term contracts will not be entitled to work beyond the expiry of their fixed term contract. Does this mean I have or don't have a job to return to?

The policy also says I should be consulted about the renewal or non-renewal of the contract. I only just informed HR last week of my pregnancy and they have not yet met with me. Perhaps that is to come when they eventually respond to me.

If I have a job to return to its obviously positive but it does mean I am in a tricky position, I cannot leave the organisation as I need the maternity leave however, I will still likely have a two months of my contract to complete after my maternity leave is complete. Which means I need to put the baby into nursery in order to return to work (returning to work is my preference anyway). But I can't afford nursery without a job once my contract ends. If I don't have a job lined-up after this then I'll have to give-up the nursery place. This will make it even harder to get a new job as I will have lost the nursery place and there is a minimum 1year waitlist in my area!

Anyway, this means I am looking at other roles within the same organisation that are permanent roles so I would have a role to return to after mat leave. But I am worried if I get a new role at the same organisation I may lose my maternity leave rights, either due to the change in role or more seriously I risk losing the job during probation period (which is 6 months at my organisation) and if this happens will this mean I am no longer entitled to mat leave?

I'm not so worried about not having a job to return to as this is the defect position more or less already. But I am worried about doing something that will risk losing my maternity leave entitlements.

I would be very grateful for any advice or support you can offer related to these concerns.

Many Thanks

I'm sorry, as a GP I must take issue with this. It's not the GP's job to prop up poor occupational health services at the employer. Of course I'd do a fit note if a woman is medically unfit to work, but there was no suggestion of this in the OP. Do you honestly think, with primary care the way it is, that we have the time to see every pregnant woman for no medical reason and make suggestions to her employer?

Dear lissy024

Any subsequent payments from your agency will not affect your Maternity Allowance. You are entitled to receive any money that is owing to you during your MA period.

You can work for up to 10 keeping in touch days during your Maternity Allowance period but this includes any employed and self-employed work you do. After ten days, you will be disqualified from MA 'as is reasonable in the circumstances' as long as you have not returned to your normal working pattern or normal volume of work as before your maternity leave.

Unfortunately there is no specific guidance on how to report your working days but the DWP guidance says that if you are unable to specify your working days, DWP will make an estimate, therefore it's important to have a good record of the days on which you worked, number of hours worked and what you did that should be sufficient. There is no limit to the amount of pay you can earn on a KIT day.

There is also no guidance on when to tell DWP about your work and this suggests that DWP only require you to report once you have completed the ten KIT days as that is when they will make a decision about whether your MA will end or how much MA you will lose.

You should note that even if you work for only one hour it will use up one day of your ten KIT days so it's important to carry out as much of your paid work in each of those ten days wherever possible.

The following admin tasks are not counted as part of your 10 KIT days or subsequent working days so you do not need to report these although you should keep a record in case DWP ever dispute it.

This is their guidance.

Minimal maintenance and admin tasks carried out which, if they were neglected would seriously impact the individual's ability to continue the work they do once they return to normal working pattern. There should be no direct payment for the work done. These are tasks that employed people would generally not need to take on during their period of maternity leave as the business they work for would be expected to cover them.

Minimal Maintenance and Admin Tasks:

• Carrying out necessary administration.

-Accepting work which is due to start after the woman’s return to work and after her MA ends.

-Carrying out essential maintenance to the woman’s website or equipment.

• Responding to correspondence requesting information as long as it does not relate to work to be carried out before the woman’s return to work and before her MA ends.

• Keeping essential formal qualifications and licenses up-to-date.

• Keeping skills at an acceptable level. This should not include formal paid-for training.

• Preparing for work arranged before the woman’s MAP starts but to be carried out after her return to work and after her MA ends.

In relation to a proportionate reduction in MA if you return to work for a day a week, this will be based on 1/7th reduction in your weekly MA payment for each day of work and this is specified in the DWP decision-maker's guidance:
Where the DWP decide that the woman is not entitled for a period of less than a week, it may be necessary to calculate the daily rate of the allowance. The daily rate of MA is one-seventh of the weekly rate.

The guidance gives the following example which fits your situation:
If a woman works for more than ten days during her MAP (MA period) the DM (decision-maker) must decide the period of disqualification. The DM must consider what disqualification might be reasonable based on the particular facts and circumstances of each case. However, once a woman has worked for ten days, the number of days for which a disqualification is imposed must be at least for the number of days she then works.

Example 1 Alison’s MAP ends on 25.6.11. On 9.2.11 she goes to work and will continue to work every Wednesday only during her MAP. There is no disqualification for the first ten days Alison works (every Wednesday from 9.2.11 to 13.4.11). The DM then considers the period of disqualification. As Alison worked five days a week before her MAP and has returned to work for one day a week, the DM decides it is reasonable that she is disqualified for receiving MA only for the days worked (every Wednesday from 20.4.11 to 22.6.11).

You can find more information on this in our information sheet: maternityaction.org.uk/advice/maternity-and-parental-rights-for-self-employed-parents/

This applies to any employed work you do through your agency or any self-employed work.

Dear Mahindra21

I am sorry to hear about all the difficulties that overpayment of your maternity pay has caused. I will set out some options and hope that this will help you to resolve at least some of the issues.

Firstly, where there has been an overpayment of wages, including maternity pay, where it's a genuine error on your employer's part, they are allowed to recoup the overpayment. However, they should set out in writing what you were owed and how much was overpaid and come to an agreement over a reasonable and affordable repayment plan for you.

Secondly, you are legally entitled to the full Statutory Maternity Pay (SMP) amount and your employer can recoup this from HMRC, even years later, so I can see no reason why they should be asking you to repay any amount that relates to SMP. SMP is paid at 90% of your average weekly earnings for the first 6 weeks and then at a flat rate of £151.97 per week (in April 2021 to April 2022) for 33 weeks.

There is an online calculator that you can use to work out your SMP: www.gov.uk/maternity-paternity-calculator or please contact Maternity Action for help with working out your maternity pay. You will need to use your baby's due date, not the actual date of birth. Your first 6 weeks of SMP is based on your gross earnings (before tax/NI) in the 8 weeks or 2 months before the 15th week before your baby was due.

If you no longer have payslips for that period I suggest asking your employer if they can provide them. Or, you can ask your employer to set out the calculations for your SMP, along with the overpayment amounts above, and ask them to explain why they are asking you to repay the SMP part.

If your employer has not paid your SMP for the full 39 weeks or they are making deductions from your earnings for wages or SMP that are no longer owing, you can make a claim for unauthorised deduction of wages in an employment tribunal. You should start a claim within 3 months from the date of the deduction or series of deductions. You can start a claim by contacting ACAS on 0300 123 1100. ACAS will start early conciliation and may be able to help you resolve things with your employer, It's important to speak to your employer first, can you ask for a meeting with HR or payroll and ask them for clarity about what is owed and what has been repaid to date.

If you still owe a large sum in overpayment of wages (not the SMP part) and you want help with renegotiating a more affordable repayment plan with your employer you can get free regulated debt advice from Stepchange: www.stepchange.org/ or the Debt Advice Foundation: www.debtadvicefoundation.org/

Finally, in addition to Universal Credit, your local authority (local council) may be able to provide other support with discretionary housing payments (if you are finding it difficult to pay your rent), council tax reduction and/or help through the Household Support Fund. Your local Citizens Advice may be able to help you with additional benefits advice or other sources of local support.

I hope you're able to get this resolved.

Dear sopotito

I will set out your rights to maternity leave and pay first as you will need to qualify in order for your partner to be able to take shared parental leave and pay. Unfortunately the shared parental leave is complex and it does not create any standalone rights to time off and pay for fathers and partners. Shared parental leave and pay can only be created if the mother qualifies for maternity leave and/or pay and transfers any untaken leave or pay to her partner.

Maternity leave

Maternity leave is a day one right and you will qualify for up to 52 weeks leave if you are an employee. This gives you the right to have your job held open for you, with the right to return to the same job at the end of your leave. This is separate to any entitlement to pay. You will need to give notice to your employer for maternity leave by the 15th week before your expected week of childbirth or as soon as possible afterwards.

You have mentioned that your job is temporary so this may mean that you will no longer have the right to maternity leave (with a job to return to) if your job ends before your baby is due. If you are still employed when you start maternity leave and your contract comes to an end during your leave, this will also bring your maternity leave to an end. However, any untaken maternity leave can be transferred to your partner to take as shared parental leave.
Maternity Allowance (“MA”):

As you are not eligible for Statutory Maternity Pay, you may be able to claim Maternity Allowance (MA) instead. You will be eligible if you meet the following employment and earnings test:

1. You have been employed for at least 26 weeks out of the 66 weeks before your expected week of childbirth. The 26 weeks do not have to be in a row or with the same employer. The weeks can be made up of different types of work and you do not need to be currently employed when you make your claim for MA. You can count weeks in which you were employed full-time or part-time - one day or part of a day counts as a 'week' of work. You can also count weeks in which you were on annual leave, sick leave or maternity leave.

2. You earned at least £30 per week on average in any 13 weeks (or 4 months if you are paid monthly) in the 66 weeks before your expected week of childbirth. These weeks do not have to be in a row and can come from any time in your 66 week test period. It is important to send payslips with your highest earnings over the 13 week/4 month period in order to get the maximum amount of MA.
   If your baby is due on 17/6/23, your 66 week test period started on 6/3/22. The 66 week test period will be based on the due date on your MATB1 maternity certificate, not the actual date on which you give birth to your baby.

You mentioned that you were employed until the end of April 2022 and that you have been employed in a temporary role since 6 February 2023.

The period from 6/3/22 until 30/4/22 will count as 8 weeks of employment or self-employment (if you were registered as self-employed at that time or if you have registered as self-employed since). This means you will need a further 18 weeks of employment and/or self-employment by your expected week of childbirth in order to qualify for MA.

Please also note, if you have remained registered as self-employed since the contractor work you did in April 2022, or if you were registered with an agency since completing that work, the period since then can still count as self-employment if you remained self-employed or remained registered with an agency and available for work since April 2022. If that is the case you can count those weeks of employment or self-employment even if no work was offered during some or all of that period but you cannot count any weeks in which you turned down work.

If you are not able to add any other weeks of employment or self-employment you will need to wait until you have met the qualifying conditions above before you can submit your claim for MA. This is likely to mean that you cannot claim until you are very close to the birth of your baby or shortly afterwards. Please remember the requirement is to complete 26 weeks of employment and/or self-employment by the expected week of childbirth, so if you give birth early you can still qualify if you would have remained employed up to the expected week of childbirth. If you started your maternity leave earlier you can count weeks of maternity leave in which you were still employed by your employer and were on leave but you won't be able to apply for MA until you've completed the 26 weeks.

You can get a copy of the MA claim form from the Government’s website here: www.gov.uk/government/publications/maternity-allowance-claim-form or you can telephone the JobCentre Plus on 0800 055 6688 and ask for form MA1.

You will need to send a copy of your MATB1 and your payslips in support of your application. If you do not have payslips you can send other evidence such as bank statements or other proof of earnings.

Employment and Support Allowance (ESA)

If you are not able to qualify for Maternity Allowance, DWP will check your National Insurance contributions for the past two to three years, not last year, and you may be eligible for Employment and Support Allowance (ESA) for the 8 week period around the birth of your baby. You don't need to make a further claim for ESA as DWP will use your MA claim form. Whilst ESA will provide you with some additional income around the birth, unfortunately it will not help your partner qualify for shared parental leave/pay. We have more information on claiming MA and ESA on the Maternity Action website here: maternityaction.org.uk/advice/maternity-pay-questions/

Changing jobs

You have mentioned that you would like to change jobs if possible. Moving to part-time work will not affect your eligibility for MA and each week of part-time work will still count as a week of work but please bear in mind that any gap in employment between now and your expected week of childbirth could affect your entitlement to MA as you still need 18 weeks of employment prior to the expected week of childbirth to qualify.

Shared parental leave/pay for your partner

Unfortunately shared parental leave does not create any additional, standalone rights for fathers and partners. It only allows the mother to transfer any untaken maternity leave/pay to her partner. For example, you must give up 3 months of maternity leave/pay in order to transfer 3 months to your partner to take as shared parental leave/pay. As you have mentioned, you both need to meet the qualifying conditions so your partner can only take shared parental leave if you have completed at least 26 weeks of employment and/or self-employment in the 66 weeks before the expected week of childbirth. As with qualifying for Maternity Allowance above, please note that you may be able to count any of the following towards a 'week of employment and/or self-employment':

• full-time or part-time work of as little as a day or half a day each week.
• any week in which you are registered with an agency and available for work even if no work is offered.
• registered as self-employed and in 'gainful employment' even if you are not working in every week.
• absent from work on sick leave, annual leave or maternity leave. This means you can count any weeks of employment on maternity leave up to the expected week of childbirth.

As mentioned above, If you are entitled to maternity leave, you can transfer any untaken leave to your partner to take as shared parental leave.
You will need to qualify for and apply for Maternity Allowance in order to be able to transfer any untaken weeks/months of Maternity Allowance to your partner. If you wish to transfer 12 weeks to your partner, for example, you must notify DWP that you wish to end your MA 12 weeks early. This is called a 'Curtailment Notice'. Your partner must give at least 8 weeks' notice to his employer to take his shared parental leave. He can take shared parental leave at any time in the year from the birth.

If you are not able to qualify for MA, your partner will also not be eligible for Statutory Shared Parental Pay. This will mean that whilst he might be able to take shared parental leave if you are eligible for and cut short your maternity leave as above, it will be unpaid leave unless his employer provides any enhanced shared parental pay under the terms of their own shared parental leave policy. Your partner should speak to his employer and check his contract for his employer's terms.

Your partner may also be eligible for 2 weeks paternity leave and pay immediately after the birth and Parental Leave. This is different from shared parental leave but is usually unpaid leave of 18 weeks per parent, per child up to your child's 18th birthday. You can find more information here: www.gov.uk/parental-leave

Finally, shared parental is a very complex scheme and take up is low. We have more information on the Maternity Action website on how to navigate it here which I hope is helpful:
maternityaction.org.uk/advice/shared-parental-leave-and-pay/

If you would like to take it further you may want to write to your own MP who can raise it in Parliament or with the Minister responsible: members.parliament.uk/FindYourMP

What are my rights if I get pregnant during a fixed term contract? Does my mat pay only last for as long as the contract? What if they verbally say they will likely renew it but then don’t follow through if I’m pregnant.

Hello,

I need some advice relating to decisions I need to make regarding my maternity leave. I am due with my first child this summer and I plan to take the full 52 weeks.

I am entitled to about three months Contractual Maternity Pay at 100% (after which I am assuming I will be claiming Universal Credit in some form). I also get approximately 6 weeks annual leave that would like to take in full at the beginning of my maternity leave.

My worry is relating to my return to work. I work full time and my wage is not a great deal above minimum wage. The father lives abroad and will nor be helping with childcare or living expenses.

Neither my contract nor the maternity guidelines I have received from my employer mention if I need to

A) pay back Contractual Maternity Pay
B) pay back holiday pay
C) how long an employee needs to return to work for to avoid either of the above.

If I find myself in a situation next year where returning to work is not possible, could I be liable for repayment of both or either of these? This seems like it might be impossible!

As an expectant first time mother I am entirely unsure what to expect going forward. Any advice would be greatly appreciated.

Thank you.

Hey, hoping someone can help.
I have been on maternity leave since September and contacted my employer via email to arrange a meeting to go through back to work paperwork etc. they asked me to specify prior to the meeting what my plans were and If i would be asking to make changes to my contract. I replied stating that i would be looking to continue working part time and still work my contracted days (Mon - Thurs) and the only change I was looking to make was a flexible working request to finish one hour earlier on a Wednesday. The following day I received an email with a letter attached stating a list of changes from when I return and refusing my flexible working request. This included the need to change the title of my job role, no changes to pay or responsibilities , but slight change and hours and they now need for me to be flexible and work a Friday as and when they need me to cover the manager. Currently someone else is employed to work the Friday (who I have checked with and knows nothing about these changes) I have always worked Mon - thurs since I've worked there. My contract states it's a part time role for 28hrs a week Mon - Thurs but does say 'your actual work pattern will be determined by the Head Teacher and may be subject to change following a discussion with you', does this still stand when returning from maternity?

I can't help but feel like they're trying to come up with reasons to put me off going back, my managers sister has been covering my maternity leave so I feel there might be ulterior motives here but I'm obviously not looking to make accusations. I'm super stressed about it all, i have 2 young children and I have sorted my childcare already and want to keep my friday off with them, my childminder doesn't work a Friday and I have no one else to call upon. I really don't know where I stand with this and feel really upset that I haven't even been consulted on this. I took the maternity pay package so I know I have to return for a 3 month minimum as I cant afford to pay the money back if I were to resign. I have emailed the head and asked for a telephone conversation prior to our meeting, which is tomorrow afternoon- any advice greatly appreciated!

Hi and thank you so much for this.

I'm in a tricky situation where I have recently found out I'm pregnant and as a nanny, my child comes to work with me. I have been informed of some changes of contract including him no longer being able to attend with me.
I also have another job which he goes to nursery for me to work.

My question is, if all proceeds with my pregnancy, can I take early maternity leave, which I would also use my accrued holiday leave to leave mid July time (not due till oct) and still be able to work at the other position as usual for the next few months. My nanny position is a very physical job with long hours so I would have had to leave a bit earlier than my admin position but not this far on advance.

My employers may have already made a decision about me and I foolishly disclosed to them that I am pregnant whilst they were talking to me about contract changes which I feel can now be used against me.

Thank you so much for your help.

Xx

Dear Katsue

You have a legal right to shared parental leave as long as you meet the qualifying conditions and you have given the correct notice. Shared parental leave is a complex scheme and your employer may not be familiar with it. I suggest speaking to your HR/payroll to see if they have processed your application and if they are clear about your dates for your periods of shared parental leave and periods of work. If your periods back at work coincide with the school holidays, you are entitled to your normal pay. However, please bear in mind that some schools frown on the use of shared parental leave in this way especially if they provide occupational maternity pay.

Please also note that you can only take shared parental leave and pay if you cut short your maternity leave and pay. For example, you must give up 6 months of maternity leave/pay in order to get 6 months of shared parental leave/pay which either you and/or your partner can take in the year after your baby's birth. Unless your employer provides enhanced shared parental pay, you may be better off on maternity leave if you get enhanced maternity pay in the initial weeks/months of your maternity leave. Otherwise your periods of shared parental leave in term-time will only be paid at the Statutory Shared Parental Pay rate of £156.66 per week until April or £172.48 pw from April 2023. I hope you are able to resolve things with your employer.

Dear Sami2318

Congratulations on your pregnancy. The earliest you can start your maternity leave is 11 weeks before your expected week of childbirth. This will be based on the due date on your MATB1 maternity certificate which your midwife will give you once you are at least 20 weeks' pregnant.

You will need to give your employer notice of your intention to take maternity leave and pay by the 15th week before your baby is due. This is when you are about 26 weeks. You must state the date you want to start your maternity leave and give them your MATB1 maternity certificate in order to work out your entitlement to Statutory Maternity Pay (SMP). You are not required to confirm how long you intend to take on maternity leave or whether you will be returning to work. Your employer should assume that you are taking 52 weeks maternity leave and you are due back to work then unless you resign or you give at least 8 weeks notice to return to work early.

As long as you are still employed by them in all or part of the 15th week before your baby is due you are entitled to SMP (if you meet the other qualifying conditions) and they must pay it to you for 39 weeks even if you leave your job after that week or at any point during your maternity leave. However, you are correct, that your employer can pay your SMP in a lump sum if they wish to and this often happens if you leave your job just before or early on in your SMP period. As a result, both you and your employer will often pay more tax and National Insurance, although you may be entitled to some tax rebate at the end of the tax year.

Whilst you are remain employed by your employer and you are on maternity leave, you will continue to accrue annual leave and any other contractual benefits (apart from pay) that you are entitled to. If you resign early in your maternity leave these benefits will end when your employment ends. You will be entitled to be paid for any annual leave accrued up to the end of your notice period. If you are resigning during your maternity leave you must still give your normal notice period (check your contract). Ordinarily I would advise waiting until nearer the end of maternity leave before resigning in order to keep your options open and to retain your benefits during that period. Circumstances can change so it's not always advisable to resign a year before you need to return to work.

If you think it's highly unlikely that anything will change and if you don't feel comfortable about continuing in your job, for example, if you have to notify your employer of your new address, you may wish to let your employer know about your relocation and ask if they would be willing to pay for some or all of your accrued annual leave for your maternity leave period even if you resign early. This would give them certainty and allow them to recruit to your role. If they are not willing to come to an agreement you can still protect your position by remaining on maternity leave.

I hope that helps and wish you all the best with your move.

Good afternoon. I am a permanent full-time worker and a single mum to a 1 year old. I come back to work in August on a part time basis, and now my employer is forcing to come back full-time or I will be fired. I would like to continue working part-time until my baby is 2 to start nursery. Currently, he is staying wigh my parents who work in the afternoon. Any advice, please?

Dear Irecan

You may still be able to qualify for Statutory Maternity Pay (SMP) if you are employed on a fixed term contract and you meet the normal qualifying conditions for SMP.

You can get SMP if:

1. you are employed by the same employer for at least 26 weeks by the end of the 15th week before your expected week of childbirth. This means you need to have been employed by the same employer for the first 26 weeks of your pregnancy. This includes full-time and part-time work.
2. you are still employed by that employer in all or part of the 15th week before your expected week of childbirth. This includes weeks on annual leave, sick leave and maternity leave.
3. you have average weekly earnings of at least £123 per week 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 expected week of childbirth.

If you are working on a fixed term contract and your contract ends in or after the 15th week before your baby is due and you have met all the other qualifying conditions above, you can still get SMP from your employer - even if your contract comes to an end. Your employer or ex-employer must pay your SMP for up to 39 weeks and they can claim it back from HMRC. If your contract has ended your employer may pay the SMP in a lump sum if they wish to. This may mean that you and your employer pay more National Insurance as a result. You must give your employer your MATB1 maternity certificate by the 15th week before your baby is due (or as soon as possible afterwards) in order to claim SMP.

If your employer offers occupational maternity pay under their own maternity policy, this will usually top up your SMP to a higher amount e.g. full pay or half pay for a period. The enhanced occupational maternity pay will usually end when your contract ends as it is an employment benefit but you should check your employer's maternity policy and/or see if you can negotiate it as part of a termination payment. Your employer must still pay your SMP for the full 39 weeks though if you have qualified for it.

If your fixed term contract ends before the 15th week before your expected week of childbirth, you cannot claim SMP from your ex-employer but you may be able to claim Maternity Allowance from DWP instead. You can claim Maternity Allowance if you are employed or unemployed, as long as you have completed at least 26 weeks of employment and/or self-employment in the 66 weeks before your baby is due. You can claim Maternity Allowance here: www.gov.uk/government/publications/maternity-allowance-claim-form

If your employer calculates your SMP wrongly or refuses to pay it you can contact HMRC Statutory Payments Disputes Team on 0300 322 9422 and ask for a formal decision on your SMP. HMRC will pay your SMP if your employer goes into liquidation.

You can find more information on maternity pay on the Maternity Action website here: maternityaction.org.uk/advice/maternity-pay-questions/
If your employer has verbally said that they will renew your contract, I suggest getting something in writing so that you have some written evidence of intention to renew your contract. Once you tell your employer of your pregnancy, I would also suggest confirming it in writing e.g. by sending a email with notice of your pregnancy to your manager and HR so that you have evidence of the date your employer was notified.

Non-renewal of a fixed term contract is a dismissal and you are entitled to written reasons for the dismissal if your contract is not renewed during pregnancy.

You are protected against pregnancy-related dismissal and discrimination if you can show that you have been treated unfavourably 'because of' your pregnancy. In most cases you will need to have told your employer of your pregnancy in order to be able to claim pregnancy discrimination. Bearing in mind there is no legal obligation to notify your employer of your pregnancy before the 15th week before your expected week of childbirth (although it may be obvious by then anyway!) you do not have to tell your employer earlier if you don't want to and if you think it might be used against you in decisions about renewing your contract. Although you have legal protection against pregnancy discrimination, in practice it can be difficult to evidence that your employer's decisions were 'because of' pregnancy.

If your contract is not renewed you should seek further legal advice. There are time limits of three months (less one day) from the date of dismissal or discrimination for starting a claim through ACAS. We have more information on pregnancy discrimination on the Maternity Action website here: maternityaction.org.uk/advice/pregnancy-discrimination/

I wish you all the best.

Dear AL5102

You can only be asked to repay your contractual maternity pay if your employer has specified in advance in writing. This could be in their maternity policy, or in a letter to you. This is an employment benefit provided by your employer and they can set their own terms and conditions. However, if there are no repayment conditions attached to the contractual maternity pay they cannot ask you to repay it.

Please note that part of your maternity pay may be Statutory Maternity Pay which is paid at 90% of your average weekly earnings for the first 6 weeks and then the flat rate of £172.48 per week (April 2023 - 2024) for 33 weeks (or 90% of your average earnings if lower). Your employer pays your SMP and claims it back from HMRC. They are likely to be topping this up to 100% for the first three months under their policy. Although they can ask you to repay the contractual maternity pay (although they do not appear to have specified this in your case) they cannot ask you to repay the SMP part (unless you start work for a new employer within your 39 week SMP period).

In order to keep your options open you can remain on maternity leave for up to 52 weeks and if you decide to resign you should check the notice period required by your contract. You can give notice before the end of your maternity leave so that you do not have to return to work. Whilst on maternity leave you remain employed and will continue to accrue annual leave during that period. Once your employment ends you will stop accruing annual leave. If you have any untaken accrued annual leave, you are entitled to be paid for it if you resign from your job. However, if you have taken more annual leave than you have accrued when you resign, your employer can ask you repay it.

If you are taking the 6 weeks of annual leave now that you will accrue during your next year of maternity leave, you will not have to repay it if you resign and your employment ends at the end of your maternity leave. If you resign earlier, you may have to repay some annual leave.

There is more information on benefits for a new baby that you may find helpful on the Maternity Action website: maternityaction.org.uk/advice/money-for-parents-and-babies/

You may be eligible for Universal Credit now if you are earning just above the minimum wage, or you may become eligible when you have your baby (when you will get a child element), or once your 3 months of full maternity pay ends and you go onto SMP. If you apply too early and Universal Credit is refused because your earnings are too high, you can apply again the following month if your earnings or maternity pay drops.

I hope that helps with your planning.

I have recently been dismissed while pregnant. I am due to attend a grievance meeting after I raised a claim for pregnancy discrimination. I'm unsure of what I can claim for as I was on a fixed term contract that was due to end on the 30th april. However, I was told, in writing, that the role would be funded for 12 months following the end of the contract. I was dismissed for reasons which I believe were due to me notifying them of my pregnancy, I was dismissed 2 weeks later for reasons that had never been communicated to me previously.
There had been a couple of informal discussions regarding my work/conduct but all unrelated to reason for dismissal.
I'm not too sure where I stand on the pregnancy discrimination claim?

I have recently been dismissed while pregnant. I am due to attend a grievance meeting after I raised a claim for pregnancy discrimination. I'm unsure of what I can claim for as I was on a fixed term contract that was due to end on the 30th april. However, I was told, in writing, that the role would be funded for 12 months following the end of the contract. I was dismissed for reasons which I believe were due to me notifying them of my pregnancy, I was dismissed 2 weeks later for reasons that had never been communicated to me previously.

There had been a couple of informal discussions regarding my work/conduct but all unrelated to reason for dismissal.

I'm not too sure where I stand on the pregnancy discrimination claim?

Dear HAW8

On return from maternity leave you have the right to return to exactly the same role on the same terms and conditions as immediately before the start of your maternity leave. This applies if you take up to a year's maternity leave but if you have taken more than 6 months' maternity leave your employer can make some changes to your role if it's 'not reasonably practicable' for you to return to the same job as before your leave.

As long as the role they are offering is a suitable alternative compared to the work you used to do and is on very similar terms and conditions e.g. days/hours, pay and grade, your employer can make some changes if they need to for work-related reasons. If your contract has always been Monday to Thursday, you are entitled to return to the same days/hours as before your leave. As you have mentioned, your contract also states that your work pattern may be subject to change following a discussion with you and this also allows your employer to make reasonable changes where needed. However, I would explore with your employer what reasons they have for requesting changes to your hours, or flexibility on a Friday, in order to press them to justify their reasoning and timing of decisions. I will set out below what to do if you cannot comply with the changes required by your employer.

If you cannot return to work on the same contractual days/hours, e.g. you need to finish early on Wednesdays for childcare reasons, you will need to make a flexible work request. Your employer may be willing to agree to a change like this informally but, in most cases, if you want to change your days/hours or place of work, you should make a formal flexible work request. This can also include a request to work fixed days. You should also make it clear if this request is based on childcare responsibilities. An employer has a duty to consider all flexible work requests seriously and to give you a decision within 3 months. They would usually be expected to meet with you to discuss your request and allow you to appeal a refusal in order to show that they have considered it properly.

Unfortunately, the right to request flexible work is weak and is only a right to ask. An employer can refuse a request, however, they can only refuse a request if they can justify it on one or more of the legal business reasons that can be given for refusing a request. There is more information on the Maternity Action website on how to request changes to your hours or fixed hours after maternity leave, the reasons that can be given for refusing a request and what to do if your employer refuses: maternityaction.org.uk/advice/child-friendly-working-hours/

You may have a claim for indirect sex discrimination if your employer refuses your request or insists on flexible working on days on which you do not have childcare without good work-related reasons. In a recent case of Dobson v North Cumbria Integrated Care NHS Foundation Trust where Mrs Dobson was refused fixed working days, the Employment Appeal Tribunal decided that tribunals can take judicial notice of the “childcare disparity” when deciding indirect sex discrimination claims, namely that women, because of their childcare responsibilities, are less likely to be able to accommodate certain working patterns.

I suggest finding out what your employer's reasons are and seeking further advice if necessary. It's important to keep things amicable when you are wanting to return to your job and to continue trying to negotiate working arrangements that will work for both you and your employer. However, please remember there are time limits of three months (less one day) from the date on which your claim was refused for starting a claim through ACAS. If you are in a union I suggest seeking their support.

I wish you all the best.

Dear DianaCojocaru

On return from maternity leave you have the right to return to exactly the same job on the same terms and conditions as immediately before the start of your maternity leave. This applies if you take up to a year's maternity leave but if you have taken more than 6 months' maternity leave your employer can offer you a suitable alternative job if it's 'not reasonably practicable' for you to return to the same job as before your leave.

If you cannot return to work on the same contractual days/hours as before your maternity leave, e.g. you used to work full-time and you now need to work part-time for childcare reasons, you will need to make a flexible work request. You have mentioned that you returned to work in August on part-time hours and you were previously full-time. I'm not sure if you made a flexible work request to return part-time or whether this agreed informally.

If you already requested part-time work and your employer agreed, this should result in a permanent change to your contract and your employer cannot now insist that you work additional hours.

If you did not made a flexible work request on return from maternity leave and your contract still says that you are a full-time employee, you will need to make a formal flexible work request to ask for part-time work. You should also make it clear if this request is based on childcare responsibilities. An employer has a duty to consider all flexible work requests seriously and to give you a decision within 3 months. They would usually be expected to meet with you to discuss your request and allow you to appeal a refusal in order to show that they have considered it properly.

Unfortunately, the right to request flexible work is weak and is only a right to ask. An employer can refuse a request, however, they can only refuse a request if they can justify it on one or more of the legal business reasons that can be given for refusing a request. There is more information on the Maternity Action website on how to request part-tie work after maternity leave, the reasons that can be given for refusing a request and what to do if your employer refuses: maternityaction.org.uk/advice/child-friendly-working-hours/

You may have a claim for indirect sex discrimination if your employer refuses your request for part-time work. In a recent case of Dobson v North Cumbria Integrated Care NHS Foundation Trust, the Employment Appeal Tribunal decided that tribunals can take judicial notice of the “childcare disparity” when deciding indirect sex discrimination claims, namely that women, because of their childcare responsibilities, are less likely to be able to accommodate certain working patterns.

You may also have a claim for unfair dismissal if your employer dismisses you if you have been employed for at least 2 years.

There are time limits of three months (less one day) from the act or series of acts you are complaining about. You must contact ACAS on 0300 123 1100 within the time limit in order to start a claim. ACAS will start early conciliation and may be able to help you resolve the issue with your employer. If you are in a union I suggest seeking their support.

I wish you all the best.

Dear Nannynowmum

Congratulations on your pregnancy. I hope the following helps with your situation at work.

The earliest you can start maternity leave/pay is 11 weeks before your expected week of childbirth. This is when you are 29 weeks' pregnant. You can also ask your employer if you can book your accrued annual leave prior to that date in order to stop work earlier.

Your other job is separate and, as you will be employed in both jobs in the 15th week before your expected week of childbirth, you can start your maternity leave (and any pay that you qualify for) at different times in each job. This means you can work up to the birth in one job, if you wish, even if you are already on maternity leave and getting maternity pay in your other job. You can also finish maternity leave/pay at different times in each job.

You must give notice of your pregnancy to both employers by the 15th week before your expected week of childbirth, or as soon as possible afterwards, and let them each know the date you wish to start your maternity leave. In order to ask for Statutory Maternity Pay (which you may qualify for in each job if you meet the normal qualifying conditions), you must show your MATB1 maternity certificate to each employer and they can take a copy.

We have more information on the Maternity Action website on your rights to maternity leave and pay if you have more than one job: maternityaction.org.uk/advice/rights-for-parents-with-more-than-one-job/

Hello all posters,

Just a quick note to say if you have not yet received a response to your query please rest assured that they are with the volunteers and will be answered as soon as possible. Some answers may be posted next week.

Best wishes,

Maternity Action

Dear Belabonita

Many thanks for your enquiry and congratulations on your baby and your new job!

Women on maternity leave continue to accrue their statutory paid annual leave entitlement under the Working Time Regulations 1998.

The law is not quite as clear on any contractual entitlement over and above the statutory 5.6 weeks per annum entitlement but there is certainly an argument that this is also accrued.

However, for the purposes of this advice, I'm assuming that your employer does not dispute that your accrued holiday entitlement is 50 days. The only question may be whether you will only have accrued 50 days if you remain employed up to the end of this academic year. If your job is now going to end earlier, you may not yet have accrued all of the 50 days.

Any holiday entitlement that you have accrued remains yours and you must be allowed to take it.

Annual leave cannot be taken during maternity leave so your employer must allow you to take your accrued holiday entitlement outside of this period.

If, however, your employment ends before you have been able to take this leave for example, if you were to give notice, you are entitled to be paid in lieu of any outstanding accrued holiday up to and including the termination date so you would not lose this entitlement even if you resign. Please note, your employer may require you to take some of the holiday during your notice period.

You would also continue to accrue holiday during your notice period unless your employer has the contractual right to pay you in lieu of notice i.e. terminate your employment immediately and pay you a lump sum in lieu of the basic salary you would otherwise have received during the notice period.

In those circumstances, if your employer chooses to exercise that right, your employment would terminate immediately and you would not accrue any additional holiday entitlement during what would otherwise have been your notice period. This question will depend on how your contract is drafted.
I note from your employer's maternity policy that the University Maternity Pay is repayable if you don't return to work for at least 3 months post maternity leave.
From your comments it appears as though this is not enforced but it is something you should be aware of.

This obligation being waived for one other individual does not necessarily mean that it is an implied right that you will not have to pay it back.
If, however, the general custom and practice is that it is not paid back then you are in a much stronger position.

Please note that if the employer has the right under your contract of employment to claw back any monies owing, then they could deduct this from any termination payment you receive.

You have queried whether you could negotiate with your employer an earlier departure and the retention of some of your holiday pay.

Yes, this is certainly an option open to you, if your employer is amenable, but you should stand firm on your entitlement to be paid for all of your accrued holiday up to the termination date as this is something you are entitled to.

What could be less would be your notice pay. For example, if it is agreed that you only give/work say half of your notice period, then you could only expect to be paid for that shorter period.

I hope that answers your questions.

Dear MasonL

Thank you for your query.

In summary, TUPE protects your terms and conditions and transfers these to your new employer. Ordinarily, this would apply to contractual terms only - any policies which are not contractual (or do not contain any contractual rights) would not typically transfer.

The policies of your new employer would apply to your employment going forward. I note that you confirm that your contract of employment/offer letter do not make any reference to maternity pay or the maternity leave policy.
However, it is worth checking whether your current employer’s maternity policy has any wording in it which would indicate that the terms of the policy form part of your contractual terms – policies will typically contain wording confirming whether they are considered to be contractual or not. If the policy is stated to be contractual, then those terms would transfer with your employment and would continue to be applicable to your employment with the new organisation.
The fact that there was previously a successful grievance challenging your current employer’s ability to change the level of maternity pay under this policy would suggest that the terms of this policy may be considered to be contractual.

I appreciate that it no doubt feels unfair that your entitlement would be different to other women going on maternity leave within the same company.
However, it is not uncommon for employees within the same company to have different terms if some employees have transferred in under TUPE. If the new organisation is applying contractual terms that have transferred along with your employment, there would not be any legal basis to challenge this.
It would be open to the new organisation – with your agreement – to utilise the more generous payment terms under their own policy if they so wished. However, they would not be obliged to do so.

If there is nothing within the maternity policy to indicate that this forms part of your contractual terms, it would likely not transfer under TUPE. In that case, the new organisation’s policy should apply to your employment from the date of the TUPE transfer. There is a requirement for your employer to inform you about a transfer, and to consult with you about any proposed measures which will impact your employment.

If the policy is stated to be non-contractual (or if this is unclear), I would suggest raising this point as part of that process to get clarity on why the new organisation’s position is that the current maternity policy will transfer. This would also be the best forum through which to challenge this if appropriate.

I wish you all the best.

Dear SH8

Thank you for your query. There is no right or wrong answer here, and hopefully this information will help you decide what is best for you.

Whilst you are on maternity leave, your entitlement to annual leave continues to accrue. If you resign now, you will only be entitled to receive a payment in lieu of any accrued but untaken annual leave to the termination date. If you wait until your maternity leave has ended to resign, you will have accrued significantly more annual leave during that time and so the payment of accrued but untaken annual leave will be higher.

All workers are entitled to a minimum of 28 days’ statutory paid holiday per year (pro rata if you work part-time). If your employer provides the legal minimum of 28 days’ paid holiday, including Bank Holidays, your employer must allow you to take at least 28 days’ paid holiday at another time i.e. before or after your maternity leave. If you have been unable to take the statutory minimum paid holiday because of maternity leave, you are entitled to be paid for any outstanding accrued holiday if you are resigning. If you are entitled to more than 28 days’ paid holiday, you must check your contract or maternity policy to see if you are allowed to take Bank Holidays or fixed holidays that fall during maternity leave at another time and therefore whether you will be entitled to be paid for them on resignation.

It is possible for your employer to pay your statutory maternity pay (SMP) in a lump sum and most employers will do this if your contract is ending before or during your SMP period. HMRC guidance says that this is at your employer's discretion so they can pay in a lump sum if they wish. Please note, if your SMP is paid in a lump sum and you start a new job, within the 39 week SMP period, you would have to return any SMP from the date you start work.

You and your employer may pay more national insurance if your SMP is paid in a lump sum but unfortunately this is not refundable. Your tax will depend on the tax year in which the SMP is paid. SMP is taxable in the same way as earnings but you will need to contact HMRC to see if you are eligible for a tax rebate. HMRC's employee helpline may be able to advise you further on 0300 200 3500.
We note that your employer appears to be asking you to resign, which is a risky approach to them as this could prompt you to claim constructive unfair dismissal and/or pregnancy and maternity discrimination. If there is a real benefit to your employer in you resigning sooner rather than later, then we would recommend that you ask them to make a settlement proposal to incentivise you to do so, for example, you could offer to resign earlier as long as they will still pay for the annual leave you would have accrued during your 52 week maternity leave. You would be required to take any proposed settlement agreement to an independent legal adviser to receive advice on its terms. Your employer should cover the cost of this (although it is not strictly obliged to do so).

Unless they sufficiently incentivise you to resign at an earlier stage then you are ready to, you should be clear that you are not under any obligation to do so, and that you should not feel pressured to do so because this would be administratively easier for them. Anything could change before now and your intended return from maternity leave, and it is a difficult time to make decisions about work and pay.

I hope everything goes well.