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

[NicolaDMumsnet]

Free online advice clinic 12th June - 16th June 2023 - OPEN NOW.

Welcome to the second clinic of the year running from 12th to 16th June. We hope you're getting the chance to enjoy the sunshine!

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 12th to Friday 16th of June. 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 16th June. 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

I am a teacher and went on Mat leave in June and I curtailed my maternity leave at Christmas and went on to shared parental leave. This resulted in 1 week return to work and pay at Christmas, 1 week at Feb half term and 2 weeks at Easter, returning to work fully at the end of May, 3 days per week.

With permission from my head I may leave at the end of August and want to know if I’ll have to pay back my OMP. So -

• I've worked for 63 days (65 is the equivalent to 13 weeks) if I include my 4 block weeks of SPL - so 2 days under the requirement if it’s calculated like this.
• My maternity leave curtailed at Christmas so I’ve been back for way more than 13 weeks (but on Shared Parental Leave) - does this count as being back?
• I’ve also worked 7 SPLIT days
• Counting just my 3 days per week from end of May, I haven’t worked enough days - if it’s calculated like this.

Would you have any idea what they should include in the calculation? Would I have to pay my shared parental or mat pay back? I really can’t afford to pay back my Mat pay.

Dear AmyAW

Thank you for your query. There is nothing unlawful about an organisation investing / introducing headcount into an area of the business – which might be what is happening if there are now to be two individuals with responsibility for marketing. I note that you were also offered the chance to apply for the new position, which, if it would have been a promotion, suggests that you are valued within the organisation. At the same time, I understand your hesitation, and concern to ensure that this new position does not have a detrimental impact on you and your role.

From a legal point of view if you take 12 months of maternity leave, your legal rights on your return are to return to a role which is suitable and appropriate for you (and on terms and conditions which are no less favourable) but you do not technically have a right to return to the exact same job which you left before your maternity leave.

In your position, I suggest that you arrange to discuss the changes within the business area with an appropriate person (potentially your current line manager?) This could be through using a KIT day or just a meeting or call from home. You could seek to understand the reasons for the changes and any impact that this may have on you, and talk through ways of ensuring that your role and responsibilities are not negatively impacted.

I would not necessarily rule out the promotion – although the job is advertised as being for full-time hours, your employer would still have to reasonably consider any flexible working request that you might make if you were to apply for it. Your employer would not have to say yes to the request, if they have good reasons for it to be full-time, but the same is true of any flexible work request.

In the event that the new role has now been offered to someone else, I would consider engaging in conversations with your employer soon about your intentions when you return to work. It may be that if you wish to return part-time that having another individual with responsibility for marketing will make it easier for your employer to accommodate a request from you to work part-time. I would suggest making a flexible work application at least 3 - 4 months before your maternity leave ends.

I hope everything goes well.

Dear Dogdream

Thank you for your query. Unfortunately there is currently no legal entitlement to paid paternity or shared parental leave for self employed parents. The only paid time off available for self-employed is Maternity Allowance for birth mothers.

I'm sorry not to be able to give better news. Maternity Action campaigns for better rights for self-employed parents and you may want to raise it with your MP.

Dear ashsweetie

Thank you for your query. You are correct, providing you were employed in both jobs in the 15th week before your baby was due you can return to work in one job without it impacting on SMP from another job. However, in order to end your maternity leave you will need to give at least 8 weeks' notice to return to work before the end of the 52 week maternity leave period. Once you have given 8 weeks notice to return early your maternity leave has ended and you are entitled to return to the job you were doing immediately before your maternity leave.

If you have not yet given notice to return early your employer can accept shorter notice if they wish to e.g. if they need you back at work. If your employer did not notify you of the date your maternity leave would end after you gave them notice to start your maternity leave, they cannot insist that you give 8 weeks' notice, however, you should still give a reasonable period of notice.

Whilst you remain on unpaid maternity leave with this employer you can do up to 10 KIT days, however, KIT days are voluntary and your employer does not have to offer any. If they do agree to any KIT days you should agree how much you will be paid and, providing you were employed in this job in the 15th week before your baby was due you can work KIT days for your employer and continue to receive SMP from your other employer.

You can show this Government guidance to your employer, see section 3.12: https://www.gov.uk/government/publications/maternity-benefits-technical-guidance/maternity-benefits-technical-guidance

I hope that helps.

Is it discrimination to pay a coworker enhanced paternity pay but only pay me statutory maternity pay?

Thank you for your advice, I went back to my employer and today they have retracted my 'at risk' status while they investigate my claim of maternity discrimination. However, they are also going to conduct another review of my whole team to assess who is 'at risk' and start the process again, so I'll likely be in the same position again in a few weeks, but they will then be able to say the process was fair and not maternity discrimination. I feel awful putting my colleagues in this situation. Also, I raised some concerns about how I was treated by my manager, and she was in the meeting when I said them, so now I have to continue to work with them until this reaches a conclusion and I am worried it will be a very uncomfortable working environment until then.

My employer has twisted my words on three points in the correspondence too:

• I said I didn't want to fight for my job as I no longer felt welcome or appreciated and they are now asking me to let them know if I want to resign as I said "I didn't want to be employed anymore." I did not say that. And that would also mean I leave without a redundancy payment.
• They said I asked for preferential treatment because I had been on maternity leave. What I actually said was that if this went to a tribunal they would have to show that they did all they could to avoid redundancy, including offering me part time hours for reduced workload, or discussing other tasks that I could take on in my role or for elsewhere in the business.
• Finally, they said I expressed that I was more experienced in some activities carried out by other colleagues - I was actually saying that the parts of my role that had been given to them were not in their job descriptions and I am the person best suited to do these.

Should I reply to this correspondence and clarify these points for the record?

I don't want to resign but I do feel like the next few weeks will be a really challenging working environment. I feel I will be selected again for redundancy and have to go through this process again which is causing me a lot of anxiety and stress. What should I do?

Dear Yolo1

Thank you for your question and I am sorry to hear about your role. You can be made redundant during pregnancy or maternity leave if it is a genuine redundancy situation, however, your employer must follow a fair process and consult with you and they must not select you for redundancy because of your pregnancy or maternity leave. An employer must also look at ways of avoiding redundancies wherever possible and consider whether there are any suitable alternative roles which can be offered to employees affected. You are entitled to appeal a redundancy decision and you can use this an an opportunity to raise any concerns about the fairness of the dismissal and any discriminatory treatment. This may enable you to negotiate an exit settlement with your employer. I would suggest seeking further legal advice on whether you have any potential claims against your employer, which would entitle you to further compensation. If the solicitor agrees with your analysis, then they could work on your behalf to leverage a greater settlement from your employer under the terms of the settlement agreement. If you were successful, your employer might agree to increase their contribution to your legal fees. However, if they did not, you would be liable for the solicitor’s fees.

One thing to be aware of is the limitation period for bringing claims under the Equality Act (for discrimination) which is three months from the date of the act or series of acts you are complaining about. However, this can be extended if you argue that the discriminatory conduct is all linked together, to constitute a ‘continuing act’ of discrimination. This is worth discussing further with your legal adviser, if you obtain one. They will also discuss with you whether you are still ‘in time’ to potentially bring a legal claim against your employer. To do so you would first need to notify ACAS via the Early Conciliation process: www.acas.org.uk/early-conciliation/how-early-conciliation-works If you do not do this in time, you will not be able to bring a claim unless a tribunal decides it is 'just and equitable' to extend time or it is possible that issues that arose in your pregnancy will now be considered out of time. Raising an ACAS Early Conciliation request can also be a way to demonstrate to your employer that you are serious about your discrimination allegations, and so put pressure on them. ACAS is a free service and they can help you negotiate with your employer. You should also check whether you have any legal expenses cover on any home or car insurance as this can cover free legal advice and representation for employment disputes.

Similarly, if you think there has been discriminatory conduct by your employer, including in relation to your redundancy, you could make a subject access request to obtain your personal data from your employer. You could ask for emails between HR and your manager, for example, which are about you. This is another way to put pressure on your employer to recognise any unfair or discriminatory conduct that you have been subjected to and to leverage a greater settlement via the settlement agreement process.

There is more information on the Maternity Action website about redundancy during pregnancy and maternity leave: maternityaction.org.uk/advice/redundancy-during-pregnancy-and-maternity-leave/

In answer to your second query about fully paid paternity leave, any occupational maternity or parental pay is a matter for individual employers and they can attach their own terms and conditions to any additional pay that they provide on top of the statutory minimum e.g. repayment clauses. As maternity leave is a health and safety right to enable women to recover from the birth and bond with their baby it cannot be compared with other types of parental leave which are made available for childcare and is it not sex discrimination to provide special treatment in relation to pregnancy and childbirth. Paternity leave is currently two weeks which can be taken immediately after the birth and it is available to fathers and partners, including same sex parents. As such it may be comparable with maternity leave and you may have a claim for discrimination and/or an equal pay claim if your employer provides enhanced paternity pay but not enhanced maternity pay for the first two weeks, however the success of any claim would depend on a decision about the purpose of paternity leave.
There are good business reasons for providing enhanced maternity and parental pay in order to attract and retain skilled and experienced employees and to support employees by enabling them to take a well paid period of leave. As Statutory Paternity Pay is currently only paid for 2 weeks at £172.48 per week but Statutory Maternity Pay is paid at 90% of average earnings in the same period (both of which are reimbursed to employers by HMRC), the cost to your employer of topping up SMP may well be less than topping up the Statutory Maternity Pay. I would suggest raising this with your employer and asking them to review their policy to ensure that it does not raise issues of discrimination or equal pay.

All the best for the discussions.

Dear Apple 1990

In a final salary scheme, an employee on maternity leave must be allowed to continue to accrue benefits as if she was working normally. The contributions that an employer must pay are calculated by reference to your usual salary. If the final salary scheme requires the employee to contribute to the scheme, your contributions must be calculated by reference to the amount of contractual maternity pay or Statutory Maternity Pay you actually receive. If your contributions are less than they would have been if you had
been working your employer would be required to meet the shortfall.

If the transitional payments are reduced because of absence on maternity leave this may be discrimination on the grounds of sex and/or maternity. The transitional arrangement over the previous three years may also be indirect sex discrimination if, for example, it disadvantages more women than men who have had to reduce hours to care for small children and if the employer cannot
objectively justify it. These are complex claims to bring and I am unable to advise further without seeing the terms of the scheme and any changes in policy. I would recommend obtaining the terms of both pensions and your contract (including details of any contributions) and seek further advice with the aim of reaching an agreement with your employer to change their practice so
that it does not adversely affect those who are on or who have taken maternity leave or part-time workers who have reduced hours for childcare reasons. If you are in a union I suggest seeking their advice first.

In relation to paid time off for fathers and partners, they are entitled to two weeks paternity leave and up to two weeks' Statutory Paternity Pay if they have been employed with the same employer for the first 26 weeks of the pregnancy and have earnings of at least £123 per week in the relevant period. Any additional contractual paternity pay is a matter for employers but I agree that one day of fully paid leave following the birth of your baby is not very supportive!

I wish you all the best in your discussions with your employer.

Dear Austinboots

Thank you for your query. In order for your husband to take shared parental leave you will need to give notice to 'curtail' (cut short) your Maternity Allowance period so that you can transfer any untaken weeks to your husband to take as shared parental leave. You should notify the Maternity Allowance claims section at DWP that you wish to curtail and your husband will need to give the correct notice to his employer to book his shared parental leave. Your husband's employer may have their own forms for booking shared parental leave or he can use the ACAS forms here: https://www.acas.org.uk/shared-parental-leave-form-templates

Once you have curtailed your Maternity Allowance you cannot go back onto it. If you are returning to work on reduced days this will not reduce the shared parental leave available to your husband. You can no longer receive any Maternity Allowance for the days you are not working.

Your husband's 20 weeks of shared parental leave will be paid at the statutory rate of £172.48 per week unless his employer offers enhanced pay. He will need to check his employer's policy carefully as employers can impose their own terms and conditions for enhanced pay and many shared parental schemes are not as generous as they might appear, for example, they may deduct any weeks of Maternity Allowance that you are taking from the weeks of enhanced pay that they pay to their employees (even though your Maternity Allowance is only paid at £172.48 per week by DWP).

We have more information on shared parental leave on the Maternity Action website here: https://maternityaction.org.uk/advice/shared-parental-leave-and-pay/

I hope that helps.

Dear SarahJ424

Thank you for your enquiry. The regulations do not state what an employer should pay for a KIT day so it is a matter for agreement. However, employers can offset any contractual pay against their liability for SMP and vice versa, if they wish to. Despite the fact that HR did not answer your queries about whether pay for KIT days would be offset against your SMP, if your employer's policy says that any SMP will not be affected by KIT days, you can rely on the policy. If you have not been paid correctly for your KIT days you can bring a claim for 'unauthorised deduction of wages' (unpaid wages) in an employment tribunal. I suggest continuing to talk to your employer first in order to try to resolve it. You have said that your manager is taking this up and it can be helpful to talk to HR and payroll and show them a copy of your original email request and their policy.

If you are unable to resolve it informally, as a last resort you can raise a grievance and you can start a claim. You must start the claim for loss of wages within three months from the date of the payment or the last in a series of payments that you are complaining about. You must contact ACAS within the time limit by starting early conciliation: https://www.acas.org.uk/early-conciliation   An ACAS conciliator will also try to help you resolve it with your employer.

Government guidance confirms that you can work for 10 KIT days under each contract with your employer and I suggest sending this to your employer. Please note, however, that KIT days are voluntary and an employer is not obliged to offer work during your maternity leave.

You can find the guidance here, see section 3.12: www.gov.uk/government/publications/maternity-benefits-technical-guidance/maternity-benefits-technical-guidance

More than one payment of SMP

If you have more than one employer, Employer A and Employer B, and you are entitled to SMP from each of your employers you can have 10 KIT days for any work you do for Employer A. You also have 10 KIT days for any work you do for Employer B.

If you have one employer and two contracts, contract A and contract B, and you are entitled to SMP from both of your contracts, you have 10 KIT days for the work you do under Contract A. You also have 10 KIT days for the work you do under Contract B.

I hope you are able to resolve it.

Dear Dash36

Unfortunately KIT days are voluntary and neither an employer nor an employee can insist on working KIT days during maternity leave. Alternatively, if you need to return to work before the end of the 52 week period, you can give 8 weeks notice to end your maternity leave early.

I hope that helps.

Dear Caterpillau

Statutory maternity leave is a day one right for all employees. This means that there is no qualifying length of service, you don’t have to return to work between periods of maternity leave and there is no limit on the number of babies that you can take maternity leave for. However, whether you will qualify for maternity pay will depend on whether you can meet the qualifying conditions, particularly level of earnings. You may need to return to work between periods of maternity leave in order to qualify for further maternity pay.

Statutory Maternity Pay (SMP)

You will be eligible for SMP for your next baby if you meet all three of the following:

1. You have been employed by the same employer for at least 26 weeks by the 15th week before your expected week of childbirth. You are still employed during maternity, sick and annual leave.

1. You earned at least £123 per week in the 8 weeks (if you are paid weekly) or 2 months (if you are paid monthly) immediately before the end of the 15th week before your baby is due.

If this period falls at a time when you are on unpaid maternity leave, you will not qualify for SMP for your next maternity leave. If you are back at work after your current maternity leave ends and this is during the period for calculating your next SMP and any enhanced maternity pay offered by your employer you are more likely to qualify. Alternatively, you may have accrued annual leave that you can take immediately after your maternity leave to help protect your earnings during this period.

SMP is paid at 90% of average weekly earnings (during the period above) for the first six weeks. The next 33 weeks are paid at a flat rate of £172.48 (April 2023 – April 2024) or 90% of average weekly earnings if that is less than the flat rate. If you do not qualify for SMP for your next maternity leave your employer must give you an SMP1 form. You may be eligible for Maternity Allowance instead. You can claim Maternity Allowance from the Department for Work and Pensions. It is paid for 39 weeks at a flat rate of £172.48 (April 2023 – April 2024) or 90% of average weekly earnings if that is less than the flat rate. However, please note that if you are claiming Universal Credit, any Maternity Allowance is deducted pound for pound.

In relation to your employer's enhanced maternity pay policy, you will need to check their qualifying conditions and how they calculate the rate of pay. Many employers base the calculation for enhanced pay on the same qualifying period as for SMP. In any event your current maternity leave will count as continuous employment.

I hope that helps.

Hello all,

Thank you to those who have posted queries during the clinic. It will now close for new queries, but rest assured that if you have posted a query and not yet received a response, this will be sent early next week.

We thank you for your continued patience.

Best wishes

Maternity Action

Hello,

I work on a zero hours contract, purely working from home.
I have no set hours and just work as and when I can manage (due to disabilities) and when I have work to complete. (For example last week I did 6 hours because I got all my work done in that time and this week it was 5.)

Therefore it's completely flexible.

I wondered if I qualify for any kind of maternity pay / allowance?

I've been employed by them in this capacity for more than a year, possibly around 18 months.

The weeks I work I have done around 10 - 14 hours at NMW. (Other than this week and last week. But I don't work every week. For example, I may not work the rest of this month now I am on top of last months invoices.)

I can't work out if I would be eligible for maternity allowance, and if I am, how I go about applying for it.

Also, if I am eligible and apply for it, does it have any negative impact on my employer?

And do I only get it as long as I'm not working?

As its only admin, wfh, I hope to be able to continue and resume working when capable rather than have an extended mat leave type period so the work doesn't pile up or they get someone else to do it and not have the job waiting for me so to speak.

I hope that all makes sense.

Thank you.

Oh no, I see it's now closed. It took me a while to write my post after seeing the thread!

Thank you

That’s so clear and helpful. Thank you very much indeed for your response.

Dear Aficanah

Congratulations on securing a new job. Most employers will only give factual references nowadays which include your job title and dates of employment although they may informally let your new employer that you are on maternity leave. If your new employer took this into account and withdrew the job offer on that basis this may be maternity discrimination, however, it can be difficult to evidence as your new employer is likely to give other reasons for withdrawing the job offer.

As you state, you don't want to run the risk of resigning before your new job is confirmed. You can ask for your current employer not to be contacted for a reference as it will alert them to the fact that you are applying for other jobs. Do you have any other references you can provide so that they are not contacting your current employer?

I hope it goes well.

Dear Apple94

In a final salary scheme, an employee on maternity leave must be allowed to continue to accrue benefits as if she was working normally.
The contributions that an employer must pay are calculated by reference to your usual salary. If the final salary scheme requires the employee to contribute to the scheme, your contributions must be calculated by reference to the amount of contractual maternity pay or Statutory Maternity Pay you actually receive. If your contributions are less than they would have been if you had been working your employer would be required to meet the shortfall.

If the transitional payments are reduced because of absence on maternity leave this may be discrimination on the grounds of sex and/or maternity. These are complex claims to bring and I am unable to advise further without seeing the terms of the scheme and any changes in policy. I would recommend obtaining the terms of both pensions and your contract (including details of any contributions) and seek further advice with the aim of reaching an agreement with your employer to change their practice so that it does not adversely affect those who are on or who have taken maternity leave. If you are in a union I suggest seeking their advice first.

You can find further information to show your employer in the Equality and Human Rights Commission's Code of Practice on Employment, see section 14.44 & 14.45: https://www.equalityhumanrights.com/en/publication-download/employment-statutory-code-practice

I wish you all the best in your discussions with your employer.

Dear CaymanMum

Unfortunately repayment of occupational maternity pay is a matter for your employer and you will need to check their maternity policy for any return to work conditions. If it requires you to return to work for 13 weeks, you will need to check if this excludes annual leave or sick leave from the requirement to be back at work for 13 weeks. If nothing is specified, annual leave and sick leave should count towards your return once you have ended your maternity leave. I think it is unlikely shared parental leave will be considered as 'returning to work' as it is a further period of parental leave but you can ask your employer and/or your union if you are in a union.

Your employer's policy may also have a discretion to waive repayment of some or all of the occupational maternity pay. If you have returned for most of the required period you can ask your employer if they will make a proportionate reduction in the amount you have to repay but please note this is discretionary and they do not have to waive repayment.

If you work for a local authority school you should refer to the Burgundy book for the maternity policy. This states:

1. Subsequent obligations on the teacher

5.1 The teacher’s subsequent obligation is to return to her job for at least 13 weeks (including periods of school closure) as a qualifying condition to occupational maternity pay. This requirement may be reduced at the discretion of the employer (see paragraph 8 below for entitlement to pay). 5.2 Where the employer agrees, a full-time teacher may return to work on a part-time basis for a period which equates to 13 weeks of full-time service. Similarly, where the employer agrees, a part-time teacher may return to work on a different part-time basis for a period which equates to 13 weeks part-time service relating to her previous contract. 5.3 The 13 week period (or part-time equivalent) starts from the date the teacher returns to work or the date during the school holiday on which the teacher is declared medically fit to be available to work.

This suggests that you can include weeks of work and weeks of school closure since the end of your maternity leave and any weeks in which you remain employed until the end of your notice period if you are working or on school holiday.

The Statutory Maternity Pay and Statutory Shared Parental Pay will not be repayable as your employer can recoup those sums from HMRC. Please bear in mind SMP includes 90% of your average earnings for the first 6 weeks and then £156.66 per week in 2022 until you curtailed your maternity leave at Christmas.

If you have to repay the occupational maternity pay (less any SMP) you can ask to repay it in reasonable and affordable instalments. You can get free debt advice from a registered debt adviser and they can help to negotiate repayment plans. It can help to provide evidence of your income and outgoings in order to negotiate an affordable repayment plan.

I hope that helps.

Dear Rolo7

I would advise going back to your employer to clarify any misunderstandings or inaccuracies. Wherever possible it is important to keep discussions amicable and constructive in order to resolve disputes and to try to find solutions in order to move forward.

You should make it clear that you do not intend to resign, however, you could let them know that you would be willing to enter discussions about voluntary redundancy following the way this has been handled on your return from your maternity leave and the impact it has had on your colleagues and relationships at work. This could open the discussion about leaving with a redundancy payment, notice pay, any outstanding holiday pay and some compensation for loss of wages while you look for another job.
Alternatively, you could raise this in further redundancy consultation meetings if there is going to be a further selection process.

Please also note, your right to return after maternity leave is to the same job on the same terms and conditions. If you used to work full-time, you would have the right to return to a full-time job and a suitable alternative job would be expected to be on the same days and hours as you usually work. If you want to reduce hours or to be considered for part-time work you should make this clear during the redundancy exercise because, as you suggest, this could be a way of avoiding further redundancy.

I hope the discussions with your employer go well.

Dear CityKity
Thank you for your queries. I will begin by answering your three questions directly, and then give a bit more information around those answers.1) Your Employer can’t stop you from beginning your period of maternity leave earlier than originally intended.Your occupational maternity entitlements would apply until (if) your contract of employment ends.It would be discrimination if your employer treats you unfavourably because of your pregnancy, or a pregnancy-related illness.2) Yes, you may have some additional protection if you begin your period of maternity leave sooner, and you may (only if already on your maternity leave) be entitled to be offered one of the vacancies you refer to, if it is a “suitable alternative”. This is dealt with in more detail below.3) You can certainly attempt to negotiate payment of an enhanced redundancy package. See below for more advice on how to approach this.
BEING MADE REDUNDANT WHILST PREGNANT / ON MATERNITY LEAVE You can be made redundant during your pregnancy and/or during your maternity leave, provided there is a genuine redundancy situation, and you have not been selected for redundancy because of your pregnancy or maternity leave. By the sounds of it, your entire sector (largely) is being made redundant, and there is no suggestion the reason for your selection is linked to your pregnancy. A genuine redundancy situation is where, in this particular scenario, “fewer employees are required for existing work”. There doesn’t seem to be a suggestion from you that there is not a genuine redundancy situation, but this is always something to bear in mind. You might be concerned that you have been told that something will happen (‘enhanced maternity pay will no longer be paid’) “once terminated”, which indicates a pre-determined decision to terminate your employment by reason of redundancy. If that comment has been made during your consultation period, it could indicate the consultation is not taking place at a formative stage, but rather when the decision has already been made. This would render the consultation futile and unfair. An unfair consultation in this way could mean any subsequent decision to make you redundant is arguably an unfair dismissal. Your employer will have to consider the pool of employees selected for redundancy, and consider what selection criteria will be used. That selection must be carried out objectively and fairly, and be non-discriminatory. For example, your employer must not include pregnancy-related sickness absence, or absence on maternity leave. If your employer is planning to make more than 20 employees redundant within a period of 90 days, they should carry out a collective consultation with the union or elected representatives of the affected employees. They should also consult individually with all employees facing redundancy. Failure to consult could be maternity discrimination. The consultation process should look at ways of avoiding redundancies, reducing the number of redundancies and minimising the effects of redundancy. WHAT PAYMENTS YOU ARE ENTITLED TO Redundancy Pay If you have worked for your employer for over two years and are aged 17 or over, you are entitled to a statutory redundancy payment if you are made redundant. This is:· Half a week’s gross basic pay, for every complete year of employment aged 21 or under;· One week’s gross basic pay, for every complete year of employment aged 22-40; and· One and a half week’s gross basic pay, for every complete year of employment aged 41 or over.There is a maximum limit of 20 years’ service, and a maximum weekly gross basic pay limit of £643 per week. You will also be entitled to a paid notice period, if you have been in your job for at least one month. The statutory minimum notice period is one week after one month’s service, and then after two years’ service, one week for every year worked for your employer, up to a maximum of 12 weeks. The statutory rate is caped at £643 per week. Your annual leave also accrues up to the end of your redundancy notice period (unless you are paid in lieu of notice). Your contract of employment or employer’s policies may give you more entitlement than the statutory minimum so always make sure you have checked through these. Maternity Pay You may still be entitled to maternity pay. If you qualify for Statutory Maternity Pay (“SMP”), you will receive the full amount of SMP due after tax and NIC deductions, in addition to any redundancy pay. To get SMP, you must:· have worked for the same employer for at least 26 weeks, by the end of the 15th week before your baby is due (“the qualifying week”); and· be employed in all or part of your qualifying week; and· earn at least £123 on average in the eight weeks or two months before the end of the qualifying week.It sounds as though these all apply in your situation. If you are made redundant and your employment ends in or after your qualifying week, you are entitled to SMP for 39 weeks.If you are already on maternity leave and receiving SMP, your maternity leave will come to an end when your employment ends, but your SMP must continue for the rest of the 39 week period. SMP is:· Six weeks at 90% of your average salary; and· 33 weeks at a flat rate of £172.48 per week (or 90% of your average earnings, if that is less). In order to claim SMP, you must give your employer 28 days’ notice of the date you want to start your pay, and give your employer a copy of your MATB1 (Maternity Certificate), stating your expected week of childbirth. At the stage of your pregnancy I imagine you will have done both these things already. Your occupational maternity pay will end when your contract ends, as it is a benefit provided by your employer. However, you may be able to negotiate to be paid some or all of your occupational maternity pay as part of your redundancy package. If your period of paid notice overlaps with your 39 week SMP, your employer is entitled to offset SMP against your statutory or contractual notice pay in respect of the same week, so you will not receive both. If your contract allows your employer to provide a payment in lieu of notice, your employment will end immediately and your employer can only offset SMP against contractual remuneration paid in respect of that week. Regulation 10 – offering an alternative vacancy If you are at risk of redundancy during your maternity leave, Regulation 10 of the Maternity and Parental Leave Regulations 1999 says that if there is a suitable alternative vacancy, it should be offered to you, as you are on maternity leave. This is because you may be about to give birth or may have been out of the workplace for some time, and would be disadvantaged in having to compete for the roles. Your employer must consider whether a suitable alternative vacancy exists between the time your risk of redundancy becomes known and the time when your maternity leave period is ended by the redundancy. The terms and conditions of this new job must not be substantially less favourable than your original job. You should be given first refusal of any suitable alternative job, and you should not have to attend interviews as you have priority over other workers being made redundant who are not on maternity leave. Your employer should not wait until you return to work – you can remain on maternity leave, and return to the new job when your leave ends. If your employer fails to offer you a suitable alternative vacancy under Regulation 10, this may be automatic unfair dismissal, and may also be maternity discrimination (if you were treated in this way because of your maternity leave). If no suitable alternative vacancy exists, you are entitled to any redundancy/notice pay you qualify for as above. If you are offered a suitable alternative job and unreasonably refuse it, you will lose your right to redundancy pay. If there are a number of posts available, a woman on maternity leave should be offered a suitable alternative vacancy, but she can be considered alongside other employees for the posts. STARTING MATERNITY LEAVE EARLIER THAN PLANNED The earliest you can start your maternity leave is 11 weeks before your expected week of childbirth. If you have already given notice and you want to change the date you start your maternity leave, you should give your employer notice of the new date at least 28 days before the new date or the old date, whichever is the earliest. If there is a good reason why that is not possible, tell your employer as soon as you reasonably can. I imagine in this scenario you may not be able to give a full 28 days, and would have to explain this situation as to why it has not been possible. To get SMP, you should give your employer at least 28 days’ notice of the date you want to start your pay and you must give them your MATB1 maternity certificate from your midwife or GP within 3 weeks of the start of your maternity pay period or 13 weeks if you have good reasons for being late. ACTION POINTS It seems as though your best option might be to begin your period of maternity leave as soon as possible. This would mean, as you have suggested, that you would be entitled to your occupational maternity pay until (and if) your contract of employment ends. You will have to tell your employer as soon as you reasonably can that this is your intention, and explain why you are telling them late (i.e. not giving them 28 days’ notice). Not only will this entitle you to your occupational maternity pay, it will also mean that you must be offered any suitable alternative vacancy – and you have suggested there may be one or two. This would avoid you being made redundant at all, and mean that you continue to be entitled to your occupational maternity pay and then return to work in the new position after your full period of maternity leave ends. You may also choose to attempt to negotiate with, and set out your position to, your employer. This would include setting out your concerns, and referring them to your rights as set out in this advice. You could refer them directly to the Maternity Action website, and to Regulation 10 as set out above: https://maternityaction.org.uk/advice/redundancy-during-pregnancy-and-maternity-leave/ You may wish to put them on notice that you consider one or both of the vacancies (or any other suitable vacancies) to be “suitable alternative employment” that you are entitled to be offered instead of being made redundant (once you are on maternity leave). This will either be a route to avoid redundancy at all, or (if no alternative employment is offered) a mechanism by which to negotiate an enhanced redundancy package with your employer. I wish you all the best.

Dear charlzz

Congratulations on your pregnancy.

I understand that you are currently employed under a 1 year fixed term contract, which has been extended until May 2024. You have said that your job has not been made permanent due to budgets. You have asked some questions regarding maternity leave and pay which I set out below:-

You said that you were worried that once you announce your pregnancy that your employer will choose not to extend or make your role permanent, due to the fact that you are pregnant and taking maternity leave. Your employer must not discriminate against you because you are pregnant and/or taking maternity leave. However, at the moment you are not a permanent employee and employed under a fixed term contract, and your employer can therefore argue that the reason you have not been kept on is due to your contractual status and budgetary reasons, which they have also previously implied was their rationale for not making you permanent. Unfortunately unless you have any proof that this is to do with your pregnancy/maternity it can be difficult to evidence pregnancy/maternity discrimination. Please note that you are not required to give notice of pregnancy and intention to take maternity leave until the 15th week before your baby is due. In order to protect your position you may want to wait until nearer this date, wherever possible, although you may need to tell your employer earlier if it is becoming obvious, or if you need paid time off for antenatal appointments or health and safety adjustments.

You have asked if your contract ended in May 2024, if you would be receiving statutory maternity pay or the enhanced package. Your maternity leave will end in May 2024 when your contract ends but you may still be entitled to the rest of your maternity pay. You will be entitled to Statutory Maternity Pay (SMP) if you are still employed by the 15th week before your expected week of childbirth and you meet the other qualifying conditions. SMP will be payable for 39 weeks even if your job has ended. If your contract or your employer's maternity policy permits you to have an enhanced maternity package, you would be entitled to this for any period in which you remain employed by your employer (as it is an employment benefit), however, the enhanced maternity package may stipulate that you would only receive this if you were to return to employment for a certain period after your maternity leave. Therefore, if your employer does not renew your contract or take you on on a permanent basis, you may not be able to qualify for the enhanced package. If this is the case you will only receive SMP. You should check your employer's maternity policy and contract of employment to establish what maternity pay you would be entitled to.

I hope the above advice is useful.

Dear Aroma11

Thank you for your query. I am sorry to hear about the experience you are having with your employer.

As you will be aware, it is unlawful discrimination for an employer to treat an employee unfairly because they have taken maternity leave. It is also unlawful for an employer to treat an employee less favourably than a man. This is called direct sex discrimination. It is also unlawful for an employer to have in place a policy, criterion or practice (PCP) which disadvantages women with childcare responsibilities where that PCP cannot be objectively justified. This is called indirect sex discrimination.

From what you describe, you may have complaints of direct and indirect sex discrimination because of the way in which you have been treated by your boss. You describe that your boss dictated the days on which you could return to work after maternity leave without consulting with you. This was clearly unfair and, given his past attitude to you taking maternity leave, there is a strong possibility that the reason he did this was because you had taken maternity leave and/or had another child (direct discrimination). Similarly, his decision to renege on your agreement for you to return to work full time appears to have been influenced by sexist/stereotypical assumptions – i.e. that because you are a woman with children, you will be unable to do your job as well/work full time. This, therefore, could also amount to direct sex discrimination.

Your boss’s refusal to allow you to change your hours or work from home, when other colleagues are permitted to do so, appears unfair. As to whether this amount to indirect discrimination, is a difficult question to answer without knowing more about the job you do and what jobs your colleagues do and how they compare. It is not necessarily unlawful for your employer to refuse your request to change your contractual hours or work from home if there are good business reasons as to why you must work your contracted hours or from the office. What makes me sceptical about whether your boss has a good reason is that he doesn’t appear to have given you an explanation for refusing your request, except to suggest that because you “only” work 2 days, you shouldn’t need to be at home. Not only is this blatantly not a justifiable reason for refusing your request but for your boss to say this to you would suggest, again, that he has a prejudiced/sexist attitude towards working women who have children. Of course, if challenged on this, he may argue that he would treat a male employee who had similar childcare responsibilities the same and therefore his decisions and attitude are not motivated by sexism/sexist – but from the experiences you describe, that wouldn’t really ring true.

In relation to the refusal to provide you with facilities to express milk, this is concerning. Whilst UK law doesn’t dictate that an employer must provide facilities to allow employees to breastfeed or express milk, health and safety regulations provide that employers must carry out a risk assessment in respect of new mothers to identify whether the workplace presents any risk to the breast milk itself or the mum’s ability to continue breastfeeding. Where such risks are identified, employers have to take reasonable steps to avoid that risk such as providing rest breaks to express milk/breastfeed or temporarily changing the employee’s hours of work/location of work. UK health and safety regulations also provide that breastfeeding women must have suitable facilities to rest at work. What is “suitable” is not defined but cases that have gone before the tribunals have suggested that this includes having access to a private room to express milk and use of facilities to clean bottles and keep milk refrigerated. A failure or, in your case, refusal to provide such facilities could lead to potential legal claims, the most likely being a claim for indirect sex discrimination based on an employer’s practice of not providing suitable facilities for women who are breastfeeding, or who want to express milk.

Next steps

There are a number of potential courses of action that you can take to try and resolve the situation and improve your working conditions. You do, however, need to act promptly because the longer you leave a situation, the harder it will be to get your employer to take you seriously and also, the less likely you will be able to take any potential legal action (see below “Time Limits”).

The first course of action we tend to recommend is to try and resolve the situation informally first. If you feel unable to raise your concerns informally with your boss (understandable, given what you have described), your next port of call would be a HR manager. If there is no HR department, you could consider speaking to another manager – ideally someone of equal status to your boss who you get along with and trust? They may be able to offer solutions – like mediation, for example – that will avoid the need to make your concerns formal.

In relation to your need for facilities to express milk, I would hope this is something that could be easily and quickly resolved by HR/your employer’s health and safety officer by notifying them that you are breastfeeding. As mentioned, they are under a duty to carry out a risk assessment as soon as they are notified and I would have thought they would be keen to agree to your request and avoid any potential health and safety liability.

If you are unable to resolve the matter informally, you may want to consider raising your concerns as 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 – explaining the details of your unfair treatment, starting with the historical unfair treatment and leading up to present day. You may want to outline what outcome you want from your grievance, but you do not have to at this stage. 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. You can also raise any non-payment of KIT days and ask to book any accrued annual leave.

In addition to raising a formal grievance or, as an alternative to raising a grievance, you could put in a formal flexible working request in relation to your wish to change your hours/work from home. You have the right to make a flexible working request providing you have not already made such a request in the last 12 months. Please note this is not a right to flexible working, but a right to request flexible working. Your employer should have a flexible working policy which explains what the process is for making a formal flexible working request. If not, our website sets out the steps that you and your employer need to follow as well as guidance on how to make your application as strong as possible: maternityaction.org.uk/advice/child-friendly-working-hours/ 

Time Limits

If your employer does not resolve your concerns satisfactorily and/or or refuses any flexible working request you make, I recommend seeking legal advice about your case before taking any further steps, and doing so without delay. You can also claim for any unpaid KIT days and for holiday pay if your employer has not allowed you to take at least 28 days paid holiday in each year (pro rata if you are part-time). The reason why you will need to act promptly is because there are strict time limits for pursuing any type of employment claim. You must apply to the tribunal within three months, less one day, from the date of the act or series of acts that you are complaining about. It is sometimes possible to apply later but only for very good reasons. If the tribunal decides that some or all of the events you are complaining about are out of time, those claims cannot succeed and this can significantly reduce any compensation you are entitled to. To commence a claim, you need to contact Acas within the time limit to start the Early Conciliation process: www.acas.org.uk/early-conciliation

For more details of how to start a tribunal claim, please see our website: maternityaction.org.uk/advice/dealing-with-problems-at-work/

There are some matters in relation to which you are unable to pursue a claim because of the length of time that has passed. The refusal to allow you to return on a part time basis when your first child was born, being one example. Also, where your complaint is that your employer has breached a term of your employment contract (e.g. changing your role or hours of work without your consent), the longer you leave to raise a grievance/pursue a claim, the more likely you will be seen to have “waived” the breach/affirmed the contract. It’s important to bear this in mind in relation to your complaint about your boss reneging on his agreement to let you return to work full time.

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

Dear CTL

I am sorry to hear about what has happened at work. Your question indicates a potential dispute about enhanced (or contractual) paternity leave or shared parental leave/pay. The key question is whether or not you were entitled to take statutory or enhanced contractual paternity leave and whether you had any entitlement to statutory and enhanced paternity pay and/or shared parental leave/pay.

Statutory paternity leave and pay:

This is a statutory right to up to two consecutive weeks’ paid leave. You are entitled to take statutory paternity leave if you meet the eligibility requirements and provide the requisite notice to your employer. More detail on the eligibility requirements is available here: www.gov.uk/paternity-pay-leave/eligibility. 

You say that you were not given a form to fill in, but it is possible that you may have satisfied the notice requirements for statutory paternity leave regardless by notifying your line manager of the baby’s due date, when you wanted to take leave and how long for.

If you satisfied the eligibility and notice requirements and think that your dismissal or demotion is connected to you taking (or trying to take) statutory paternity leave, you may have a claim against your employer under the Employment Rights Act 1996 for unlawful detrimental treatment and/or “automatic” unfair dismissal. You do not need to have a particular length of employment service to qualify for this right – it applies from day 1 of being an employee. Details on how to bring a claim are given below. If your claim is successful, you may be entitled to compensation for your dismissal, but you could also seek to be reinstated into your job.

If you were entitled to statutory paternity leave and pay, you shouldn’t have to repay any amount to your former employer, unless they paid you more than you were entitled to. Statutory paternity pay (SPP) is £172.48, or 90% of your average weekly earnings (whichever is lower). You will need to check your contract or your employer's family leave policies to see if you qualified for any enhanced paternity pay for those two weeks.
Shared parental leave and pay

Any leave over and above the two weeks paternity leave and SPP, would have to be taken as shared parental leave. You can only have shared parental leave if you qualify for it and your partner has reduced her maternity leave and pay e.g. she curtails her maternity leave and pay by 4 weeks and you give notice to your employer to take 4 weeks shared parental leave and pay. You and your partner have a maximum of 39 weeks maternity pay and 52 weeks maternity leave to share between you but fathers and partners are only eligible if the mother cuts short her maternity leave/pay and transfers some of it. If your partner has taken or intends to take 39 weeks maternity pay there is no remaining paid leave to transfer to you as shared parental leave. Any Statutory Shared Parental Pay is paid at the same rate as Statutory Paternity Pay above or your contract/employer's policy may provide enhanced shared parental pay.

Enhanced paternity leave and pay:

You only have a right to take enhanced (contractual) paternity leave (whether paid or unpaid) if your employer agrees it with you. This could be through a policy that applies across the organisation or just agreed between you and your employer if it is negotiated directly. If there has been agreement, then you may have a legally enforceable right under contract.

You mention that your line manager authorised the leave – if there is written evidence of this authorisation (email, letter etc.) then that should be reviewed to determine if you had a contractual right to take the period of leave. It is possible that a binding contract was made orally, but it is harder to prove this and so we recommend that you look for any written evidence of the agreement you made with your manager. You should also look for confirmation of whether any enhanced period of leave would be paid or unpaid.

If you can show that the “enhanced” leave was authorised and you had a contractual right to take it, then if taking that leave was the reason for your demotion and/or dismissal, you may have a claim for detrimental treatment and/or automatic unfair dismissal. If your claim is successful, you may be entitled to compensation for your dismissal, but you could also seek to be reinstated into your job.

You may also have a claim for breach of contract if the employer had agree to allow you to take that leave and now states that it was unauthorised. If you were entitled to be paid during the enhanced leave, then you should not be required to pay that amount back to your employer.

If you did not have the right to take either form of paternity leave, then you wouldn’t be entitled to any payment received for that leave. However, you may still have a claim for ordinary unfair dismissal depending on your employer’s reason for the dismissal and depending on whether they followed a fair process. Taking an unauthorised leave of absence is not usually enough to constitute gross misconduct – it is more likely that it would be a misconduct offence meriting initial disciplinary action, but not dismissal. Unlike for automatic unfair dismissal, you would need to have at least two years’ continuous service with your former employer at the point of dismissal to bring this claim. We suggest that you look for evidence of the reasons your employer gave for dismissing you and consider if you can bring a claim for ordinary unfair dismissal. If you have not already done so, you should write to your employer to appeal the dismissal.

You also mention that you are aware of a female employee being treated differently. It’s worth noting that maternity leave is a health and safety right for recovery from the birth and companies can also offer enhanced maternity pay without offering enhanced paternity pay. However, if it is the case that your leave was unauthorised and a female employee also took a period of unauthorised leave but was not disciplined like you were, then you may also have a claim for direct sex discrimination. For a claim to succeed, you would need to show that you were treated less favourably because of your sex.

If you have a legal claim, you should try to resolve it first by talking to your former employer. If you haven’t already appealed your dismissal, we would suggest writing to your employer to do so and providing them with information on your rights, and asking for a meeting to discuss it. If that doesn’t work, you can make a claim in an employment tribunal and you should seek legal advice before doing so. If you are a union member you should contact their legal department for assistance with a claim. Claims must be made within three months (less one day) from the date of the dismissal or discrimination. You must contact ACAS Early Conciliation within the three month time limit before making a tribunal claim: www.acas.org.uk/early-conciliation  If you miss this three month time limit, you could apply to the tribunal for permission to bring your claim but it is unlikely that they would allow you to do so unless there was a particular reason that prevented you from filing within time.

If you do not have a legal claim because you were not entitled to either take any leave or be paid for it, then because you are no longer employed the only way that your employer can require you to repay the demanded amount is by suing you for it in civil court as a debt. The amount you owe will depend on whether you were entitled to any paid leave – if you were entitled to statutory paternity pay but not enhanced paternity pay, then you will only owe the difference between the two amounts. If they still owe you some money in respect of your employment e.g. your last salary payment or any accrued annual leave, then they might try to deduct amounts owing from this salary payment. Whether this is lawful or not will depend on whether you have given express permission to make deductions from your wages – this might be in your employment contract, for example. Seeking recovery of a debt is an expensive process. It is more likely that they will try to negotiate with you to agree a repayment plan that is manageable for you. This could include paying in monthly instalments, or agreeing to pay part of the amount only, and any agreement should be recorded in writing so that you know what you need to do. You have a better chance of agreeing a good repayment plan if you can provide written evidence that the leave (if unauthorised) was taken in good faith. ACAS may be able to help you negotiate this as part of the early conciliation process or you can get free, regulated debt advice from a specialist adviser: www.moneyhelper.org.uk/en/money-troubles/dealing-with-debt/debt-advice-locator

I wish you all the best.