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

Dear MrsKEC

Thank you for your enquiry.

Transfer of your employer's business

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) offers protection to employees from dismissal in connection with the transfer of a business. (I have assumed from your comments about a previous transfer in 2020, that you had at least 2 years’ service with your former employer.)

Dismissals will be automatically unfair if the principal reason for the dismissal is the transfer, unless an employer can show that the reason for the dismissal was an “ETO reason” (this means an economic, technical or organisational reason) entailing changes in the workforce. Whether the dismissal is by reason of the transfer rather than an ETO reason is a question of fact for a Tribunal to determine. Without a more detailed understanding of the situation I cannot advise you on where your dismissal falls. On one hand the fact that there is a new team of 3 people doing the same work that you were doing previously undermines the impression that there was a genuine ETO factor at play – and suggests that you may have been dismissed because of the transfer. On the other hand, you mentioned “liquidators” in your message which might indicate genuine financial factors driving the decision. It is important to note that if your former employer was subject to compulsory liquidation the specific TUPE protection mentioned above will not apply.

If that is the case you may still have grounds for bringing an unfair dismissal claim. Women on maternity leave have a preferential right to be offered suitable alternative employment in a redundancy situation (and it sounds like this may not have happened here), nor does it sound like a fair process of consultation with you was carried out.

If based on the above, you think that you may have grounds for a claim, you should seek further legal advice. There is a time limit of three months (less one day) from the date of your dismissal to bring a claim. Given that the decision was only communicated to you on 13 January 2023 there is an argument that the time limit runs from that point. However, you commented in your message that you were made redundant on 16 December 2022. As a result (and to avoid any argument that your claim could be out of time) you would be advised to seek further advice and if you decide to go down that route, contact ACAS within the time limit to initiate a claim as soon as possible. ACAS will then start an early conciliation process and they may be able to help you resolve things with your employer and reach a settlement. For further guidance, see: www.gov.uk/employment-tribunals

Maternity pay

In relation to your maternity pay, if there is money owing to you which has not been paid, including holiday pay or other sums owed, you can make an unauthorised deduction of wages claim and/or a claim that you have suffered a detriment as a result of your pregnancy and/or maternity leave. If an employee is dismissed to avoid an employer’s liability for statutory maternity pay (SMP), that dismissal may also be an automatically unfair dismissal and an act of pregnancy and maternity discrimination and these may be additional claims that you wish to add to the above if you decide to pursue it.

You commented that you have already been in touch with the DWP, however, I assume this means you are claiming Maternity Allowance as your SMP has stopped. Maternity Allowance is paid at the same flat rate as SMP of £156.66 per week before April 2023 and £172.48pw from April 2023 for up to 39 weeks. However, if you are claiming Universal Credit you will be significantly worse off on Maternity Allowance as it will be deducted in full from your UC. If you are not claiming Universal Credit, you can continue to wait for DWP to approve your claim for Maternity Allowance as a means of ensuring that you get the rest of your maternity pay as soon as possible.

Otherwise, if you will be better off getting the rest of your SMP rather than claiming Maternity Allowance, you can claim any outstanding SMP from HMRC's Statutory Payments Disputes Team. HMRC will make a formal decision where your employer is refusing to pay the rest of your SMP or has gone into liquidation and is unable to pay it. I suggest contacting your employer first, if you're able to, to ask why you have not been paid the rest of your SMP. You can also give them this link to make it clear that they are entitled to reimbursement for your SMP and can get advance payment if they are in financial difficulties: www.gov.uk/recover-statutory-payments/if-you-cant-afford-to-make-payments

You can also let them know that if you have not had any response in 7 days that you will contact HMRC.

You can contact HMRC Statutory Payments Disputes Team on 0300 322 9422 to ask for a formal decision. You must contact HMRC within 6 months from the start of your SMP period. If HMRC decide that you are eligible for SMP they will order your employer to pay it.

If your employer does not pay your SMP or your employer has gone into liquidation, HMRC will pay your SMP directly.

You will need to ask your employer to give you the contact details for the liquidator in order to be able to confirm the information HMRC will need.
If you are unable to get through to HMRC by telephone you can write to them at: Statutory Payments Dispute Team PT Operations, North East England, HMRC, BX9 1AN.

I hope you are able to resolve everything.

Dear FixedTermQuery

Firstly, congratulations on your pregnancy!

Your fixed term contract

We understand that you are currently engaged on a 2 year fixed term contract, which commenced in October 2021 and which is due to expire in September 2023.

You are due to be having a baby in August 2023, approximately one month prior to your contract expiring.

Whilst we have not seen the terms of your fixed term contract, we assume that it states that it will either terminate automatically in September 2023 or that your employer will give you a period of notice prior to the expiration of your fixed term employment contract.

The general position is that the termination of a fixed term contract constitutes a dismissal at law. Whilst you do not have unfair dismissal protection given that you do not have at least two years’ continuous employment, you do benefit from pregnancy/maternity discrimination protection. This means that your employer must be able to demonstrate that they have a fair and objective reason which is unconnected to your pregnancy/maternity leave for not renewing your fixed term contract. If, for example, they could demonstrate that they do not have sufficient funding to support the renewal of the contract, then this would most likely comprise a legitimate reason for terminating your contract. We would expect your employer to enter into a dialogue with you in advance of the expiry of your fixed term contract to discuss their proposals concerning the possible expiry or renewal of your contract.

Whilst we have not seen the terms of your employer’s maternity policy, it appears that your fixed term contract is due to expire during your maternity leave (i.e. during September 2023 one month following the birth of your baby).
If your employer confirms that your employment will be terminating at the end of the fixed term period, then it appears from the policy, that your employment (together with your maternity leave) would end in September 2023 and you would not have a role to return to following your maternity leave.

For completeness, we just wanted to highlight that there is a quirk in the legislation which potentially extends an employee’s employment if, for example, an employer seeks to end an employee’s employment contract in the week prior to their two year anniversary date, to prevent the employee from acquiring unfair dismissal protection. Whilst this is unlikely to be directly relevant to you, it is worth bearing in mind just in case your employer leaves it to the very last minute to discuss your fixed term contract with you. We consider this to be unlikely given that you will most likely be on maternity leave by this point.

Your maternity pay

If your employment were to end in September 2023:
Your entitlement to enhanced maternity pay would depend entirely on the terms of the policy. The policy may state any additional service requirements or repayment conditions that your employer wishes to apply. As this is in addition to statutory maternity pay your employer can set their own terms and conditions for their own benefits. Any enhanced maternity pay (paid on top of your
statutory maternity pay) is a benefit provided by your employer and will usually end from the date on which your employment ends, however, you may be able to negotiate some or all of it as part of your termination payment.

You would be entitled to receive statutory maternity pay given that your employment would have ended after the 15th week before your baby is due.
Note that if you start a new job with a new employer before the statutory maternity pay period finishes, then your statutory maternity pay (SMP) would cease. SMP is paid for 90% of your average wages for the first 6 weeks and then £172.48 per week for 33 weeks (or 90% of your average earnings if lower).
Obtaining a new role within the organisation
If you were to obtain a new role within your current employer to commence in advance of or during the week immediately following your fixed term contract expiring in September 2023, your new employment contract would need to recognise your period of continuous service.
This would mean that you would be deemed to have been an employee with the organisation since October 2021 and you would continue to have a right to receive maternity leave and maternity pay but it's important to check your contract carefully to make sure it recognises your continuous employment.

Please note that there is a quirk in the legislation which states that an employee’s period of continuous employment can be severed if there is no contract in place for a complete week. This means that if your fixed term contract expired in September 2023 and you were offered a permanent position to start after your maternity leave, then your continuity of employment would not be preserved. This would mean that you would potentially lose your right to take maternity leave.

Provided that you were employed in or after the 15th week before your baby is due, you would still be entitled to receive statutory maternity pay (see above).
It would therefore be important to seek to negotiate that you preserve your period of continuous employment if you were to obtain a new role. This would also protect your enhanced maternity pay if you remain employed by the same employer throughout your leave. Note that if your employer were to take this course and sever your continuity of employment, you would potentially be able to argue that you have been treated less favourably because of your pregnancy or maternity leave. Had you not been pregnant/on maternity leave, it is likely that your employer would have either extended your fixed term contract or offered you a new position.

In terms of any probationary period, we would usually suggest that you ask for this clause to be removed on the basis that you have already passed your probationary period for another role and you do not consider it appropriate.
If a probationary period is a non-negotiable point with the organisation, depending on when you start the role, the two following scenarios could apply:
If you start a new role in June for example, you may acquire at least two years’ continuous employment during the course of your probationary period, meaning that you would have acquired unfair dismissal protection. The organisation would then need to have a fair reason and follow a fair process before terminating your employment. They would not, for example, be able to terminate your employment on say, one week’s notice.

By the same token, if you started your new role in June, the organisation in July could decide that the working relationship is not working and could look to terminate your employment. If they took this approach, they would still need to have a fair reason for terminating your employment, which would need to be unconnected to your pregnancy/maternity leave. In this situation, you would lose your right to take maternity leave, given that you would no longer be employed by your employer. However, you can continue to be entitled receive statutory maternity pay (see above).

We hope that the above assists.

Dear Adviceplease13

You will qualify for SMP from your current employer 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 and sick leave. It doesn't matter if your job ends after this week.
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 resign during pregnancy 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. 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 is ending your employer may pay your remaining 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.

SMP is paid for 90% of your average earnings for the first 6 weeks, then £172.48 per week for 33 weeks (or 90% of your average earnings if lower).
If your employer offers occupational maternity pay under their own maternity policy, this will usually top up your SMP to the higher amount (which you have said is full pay for 6 months). After that you would remain entitled to 3 months of SMP (but see below if you start a new job in that 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. You should also check whether your employer has a repayment clause in their policy as you may be required to repay the occupational maternity pay element if you don't return to work for a specified period. If that is the case and you're not intending to return to work with them, you may want to ask your employer to pay your SMP only.

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. 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 from your job.

You have mentioned that you have a 3 month notice period in your contract. You should also check if the contract allows your employer to provide a payment in lieu of notice (PILON). If so, this could allow your employer to end your employment immediately. If you are thinking of resigning during pregnancy this could mean that your contract ends before you are able to qualify for SMP or, if you resign during maternity leave, a PILON could bring any rights to occupational notice pay and annual leave to an end immediately.

Although maternity pay only lasts for 9 months, maternity leave can last for up to 12 months. Providing you resign during your maternity leave and give at least 3 months' notice, your employer cannot ask you to work your notice. You are entitled to remain on maternity leave for the full year if you wish to even if you've given notice to resign.

Your employer must continue to pay your SMP for up to 9 months, even if you are serving your notice during this period. However, if you start working for your new employer (and they didn't employ you in the 15th week before your baby was due), you must tell your ex-employer to stop paying your SMP from the date you start work in your new job.

You can find more information on resigning during pregnancy and maternity leave on the Maternity Action website here: maternityaction.org.uk/advice/resigning-from-your-job-during-pregnancy-and-maternity-leave/

I hope all goes well.

Dear overwork

Thank you for your enquiry.

SMP for your bank contract

Firstly, it is possible to qualify for Statutory Maternity Pay (SMP) from two jobs, if you meet the qualifying conditions in each job. You can qualify for SMP for 'bank' work and you have mentioned that you are paid through PAYE with tax/NI deducted at source in relation to this job and that your earnings are more than the lower earnings limit (currently £123pw).

The eligibility requirements for SMP are as follows:
· you have been employed for 26 weeks continuous service ending with the 15th week before your expected week of childbirth;
· you are still employed in the same job in the 15th week before your baby is due – even if it’s only for one day or part of a day in that week – this includes sick leave or annual leave; and
· your average earnings were at least £123 per week in the eight weeks (if you are paid weekly) or two months (if you are paid monthly) up to the last pay day before the end of the 15th week before your baby is due.

If you do 'bank' or agency work you can still meet the continuous service requirement if you are registered with the agency/bank for the first 26 weeks of your pregnancy and you were available for work in each week. You do not need to have worked in each week for it to count. If you turned down an offer of work it will break your continuity of employment but if no work was offered or you were unable to work because of illness, injury, agreed annual leave or maternity leave it will not break your continuity of employment.

Your 'employer' for SMP purposes is whoever is liable for your national insurance contributions in your bank job. You have mentioned that you have a separate employee number and I assume that you are working for your Trust's bank. If that is the case and you have already given notice to your Trust in relation to your permanent job, it is not clear whether they have considered your eligibility for SMP separately for your 'bank' work. If your 'bank' is different to your Trust you should give the bank your MATB1 maternity certificate and ask them to look at your entitlement to SMP as it seems possible that you can get SMP for your bank work.

If you work for your Trust's bank, you may want to show them this Government guidance on SMP which states:
www.gov.uk/government/publications/maternity-benefits-technical-guidance/maternity-benefits-technical-guidance

3.6 More than one employer
If you have more than one employer, you may be entitled to SMP from each one (so you could get more than one lot of SMP). The same is true if you have more than one contract with the same employer, if your NI contributions are paid separately for each contract.

It also states
3.8 More than one contract with same employer
You may also be entitled to more than 1 lot of SMP if you have separate contracts with the same employer. You can start your SMP at different times in relation to each contract.

If your employer is refusing to pay SMP for your bank work and you think you have qualified for it based on the above, you can contact HMRC Statutory Payments Disputes Team on 0300 322 9422 to ask for a formal decision. You must contact HMRC within 6 months from the start of your SMP period. HMRC will ask you and your employer for more information about your bank work. If HMRC decide that you are eligible for SMP they will order your employer to pay it.

If your employer decides that you are eligible for SMP (or HMRC orders it) in relation to your bank work, you can start your SMP earlier or later in respect of your bank work, you do not have to take maternity leave at the same time in each job. You can also work for up to 10 keeping in touch days without losing your SMP if your employer/bank is willing to offer work which I will cover below.
NHS occupational maternity pay

The general position is that occupational (otherwise known as enhanced) maternity pay is a benefit to you and as such, it is subject to the employer’s rules and decisions. It would therefore be up to your employer whether or not they count your earnings from your bank shifts as part of your occupational maternity pay in accordance with its policies.

If the occupational maternity pay provisions are expressly incorporated into your contract of employment, the employer will need to comply exactly with these provisions and won’t have any discretion. I recommend that you check your contract of employment to see whether it expressly commits your employer to any terms which might be beneficial to you.

NHS occupational maternity pay is based on service as an 'employee' so it may only include your earnings from your permanent job. The NHS maternity policy is available online here at section 15: www.nhsemployers.org/publications/tchandbook
Unfortunately, most bank work, even where you are employed by your own Trust's 'bank' is not classed as 'employee' service as you will usually be classed as a 'worker' when doing bank/agency work. However, if you have a written bank contract, you should check what it says about your employment status and get further advice if you think you are an employee.
You can request that your bank work is considered in calculating what you receive in for occupational pay, however, this will be at the discretion of your employer. If NHS maternity pay is refused because of breaks in service or because you worked on insecure contracts such as agency or bank work, you will need to write to the Trust setting out your NHS service and ask them to exercise their discretion under s. 15.109 of the NHS policy and ask them to take into count other previous NHS service or service with other employers.

Keeping in touch days

In terms of working whilst on maternity leave, you can work for up to 10 “keeping-in-touch days” (KIT days) without bring your maternity leave or pay to an end. Unfortunately you cannot insist on KIT days as it is up to the employer if they wish to offer them and up to employees whether they wish to accept them. Please also see section 15.65 of the NHS policy on KIT days.

It may be worth noting that where an employer has provided occupational maternity pay they can sometimes be reluctant to provide KIT days as the purpose of well paid maternity leave is to enable to an employee to benefit from the time off. Employers also sometimes object to their employee continuing to work in a second job if they are paying enhanced maternity pay but as long as there are no restrictions on taking a second job in your contract, or in the employer's maternity policy in relation to their provision of enhanced maternity pay, they cannot prevent you working in a second job during maternity leave as long as it's within the rules which I'll set out below.

As long as your bank contract is a completely separate contract, even though it is for same employer as your permanent job (for which you are getting enhanced maternity pay), the rules on working during maternity leave are as follows:

1. if you get SMP from both jobs - if your bank is willing to offer KIT days and you qualify for SMP separately in respect of both of your jobs, you can work for 10 KIT days (in each contract) without losing your SMP. As mentioned above, you can also start your SMP at different times in each job so you may be back at work in one job and on maternity leave in the other job. Equally, if you want to return to work earlier in one job, you can give 8 weeks' notice to end your maternity leave in one job and continue on maternity leave in the other job.
2. if you only get SMP from one job - if you are not eligible for SMP in respect of your bank work but you are employed by the bank in the 15th week before your baby is due (the qualifying week), you can continue to work under the bank contract without it impacting on your SMP/enhanced maternity pay in your other contract. This is also set out in the Government guidance above at section 3.12 which you you can show your employer which states:

' '3.12 Working in your Maternity Pay Period If you are getting SMP from one employer and, before your baby is born, you do some work for another employer, your SMP is not affected. Your SMP will stop if after the baby is born, but before the end of the Maternity Pay Period, you work for an employer who did not employ you in the qualifying week.'

This confirms that you can work for an employer who employed you in the 15th week before your expected week of childbirth, and it will not affect your SMP under your other contract with the employer.

I hope the above is helpful. Wishing you all the very best.