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

[NicolaDMumsnet]

Free online advice clinic 4th March - 7th March 2024 - 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 from Monday 4th to Thursday 7th of March. The Maternity Action team will do their best to provide all answers during that time and at the latest by Friday. 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 7th of 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

I am due to start my maternity leave at the end of the month and last week a new position has been added to our team that allows for one of us (small team, only 2 plus manager) to be promoted. The timing of the promotion seems a bit too convenient as I know my colleague was discussing looking for progression outside of the company before Christmas. It's as if the position has been made specifically for him so he doesn't abandon ship while I'm on my maternity leave - they have specifically chosen tasks that my colleague focuses on more than me. My manager has acknowledged the "poor timing" of the promotion and advised me I'm still able to apply for it. I have put my application in but I honestly feel as though this promotion is fixed anyway and I have no chance of getting it considering I'm about to head off on maternity leave. I have been at the company twice as long as my colleague and previously mentioned my disappointment at the lack of progression within the company over a year ago. I have stayed though as I really enjoy it there and it has great work/life balance.

• What are my rights when it comes to this promotion?
• Can the timing of this promotion or the outcome be perceived as maternity discrimination?
• If so, what can I do about it and how can I evidence it?

To top it off, my manager and my colleague have a long friendship as they previously worked together elsewhere for a number of years. I definitely feel as though there is bias here and discrimination due to my pregnancy/maternity.

I’m currently on mat leave. We offered my role out as a temp contract, but the person we offered it to declined and said she wanted a perm role. They have offered her a perm role with the same job title as me, despite there not previously being such a vacancy.

When I go back to work there won’t be enough work for the two of us! Where do I stand? I’m taking 12 months maternity leave

Dear leifygreens,

Your rights on return from maternity leave depend (to some degree) on how much maternity leave you have taken. If you have taken 26 weeks of leave or less you are entitled to return to exactly the same job on the same terms and conditions as immediately before your maternity leave. If you have taken more than 26 weeks of leave you have the right to return to a suitable alternative job on similar terms and conditions. If you are not being offered the same job, your employer would need to be able to show that it was not reasonably practicable for you to return to the same job (i.e. where there are business-related reasons why jobs have changed / there has been a broader restructure entirely separate to your maternity leave). As a starting point, it could be difficult for your employer to justify that offering a part-time position is a suitable alternative for you, but there may be broader factors at play.

I note that you said in your message that after August they are not sure whether there will be work available. This could potentially indicate that there are broader resourcing issues which are impacting the options which you are being presented with, but that does not fit with the fact that new employees have started whilst you have been on maternity leave.

If you do not feel comfortable raising a grievance, you could still try to arrange to have an informal discussion with your line manager, or other senior individual within the business to talk about your concerns and set out why you feel that you are not being treated fairly and try to find a solution which works for both sides.

You say in your message that you feel they are trying to push you out. Unfavourable treatment because of pregnancy or maternity leave can include a wide range of behaviour, such as reducing your workload, refusing work on certain projects or clients, and other changes that may affect your chances of promotion or which might increase the risk that you will be made redundant. If this is the case, there are more formal options available to you (i.e. raising a grievance, contacting ACAS, considering a claim) if raising your concerns informally does not lead to the resolution you want.

It is worth noting that there are some new regulations which are coming into force from 6 April 2024. These regulations may offer additional protection to those returning from maternity leave whose statutory maternity leave ends on or after 6 April 2024. This will give someone returning from maternity leave first refusal on a suitable alternative role (if there is one) in a redundancy situation for 18 months after the date of the birth of the child. The timing may not quite work for your situation, but I mention in case you have any flexibility around your return date given the nervousness you note about potentially being made redundant. If you return before 6 April, you still have protection against unfair dismissal (as you have more than two years' service) e.g. if it isn't a genuine redundancy situation or you are selected unfairly.

I hope that the above is helpful and hope you are able to find a resolution that you are happy with.

Hi.

I want to check whether this is pregnancy discrimination.

I've been working at the company for over a year.

I told my company back at the end of December (27th) via email that I was pregnant. The company boss didn't read the email until early January because of the Christmas office shutdown.

At the start of March (Friday 1st March), I was told that the website I am working on will be sold to another company alongside the website that my other colleague is working on (who is a man). I was originally told multiple times that my website wouldn't be sold and that there was no need to worry. During the same meeting I was told that I was being made redundant with four weeks notice. I was not told about any other job opportunities that I could transfer (when they have since been discussing bringing in temporary warehouse staff) to and I was not provided with any paperwork about the redundancy. The other colleague that is a digital marketer is being kept on to work on another website- there was no interview or discussion about who should take over the role. I am the only person being made redundant. No other digital marketing roles are available at the business.

On Tuesday night (5th March), I sent an email stating that as I was working until the end of March I would be eligible for maternity pay (due 26th June; I would be working 15th March on my 15th qualifying week).

Yesterday (6th March), my boss came in and said they would like to discuss the email I sent. I assumed they meant they would discuss payment of the maternity pay. According to them, they checked with their HR rep and confirmed it wasn't fair to give me four weeks notice when they apparently gave previous employees only one week last year for redundancy notice. This meant that instead of being made redundant in four weeks time that I would be made redundant on Friday 8th March. They then proceeded to check their phone calendar in front of me and counted 15 weeks from the 8th and confirmed that I would no longer get maternity pay. They didn't need to do this as I had already provided the information that I had to be working next week to get my maternity pay. I will now have to get maternity allowance (hopefully).

I found it interesting that I am being made redundant in a hurry now as there is a new law coming in from April 6th 2024 stating that employees that are pregnant etc will gain priority status for redeployment opportunities in a redundancy situation so they would have had to give me the role my colleague has been automatically given.

I've just checked my employment contract this morning and the only references to notice period state that I am required to be given four weeks notice from the company. It says by mutual agreement, we can decide to a shorter notice period. But I'm definitely mutually agreeing with it.

Any information?

Dear Throgadlok

Thank you for your query. Any increase in pay between the start of your relevant period (8 weeks/2 months before the 15th week before your expected week of childbirth) and the end of your maternity leave should be reflected in your SMP. In practice, this is only likely to lead to an increase in your SMP for the first 6 weeks, during which SMP is based on your average weekly earnings, unless your standard rate was below the current rate of £172.48 per week.

Your employer should recalculate your average weekly earnings in the relevant period to include the increase in pay. They should then pay the difference and they are eligible for reimbursement from HMRC for any SMP paid out, including any increases. Information about reimbursement for employers is available here: https://www.gov.uk/recover-statutory-payments

I suggest writing to your employer (HR/payroll) and asking them to recalculate your average weekly earnings. If necessary, you can send them this guidance from gov.uk: https://www.gov.uk/guidance/statutory-maternity-pay-employee-circumstances-that-affect-payment#employee-earnings-affected-by-a-pay-rise

If your employer does not pay your SMP correctly you can ask HMRC for a formal decision. You should call HMRC Statutory Payments Disputes Team on 0300 322 9422 to start a claim.

I hope you're able to resolve that.

Dear Jama93

Thank you for your query.

For SMP, your earnings must be calculated on the basis of your gross earnings in the relevant period but this only includes earnings that were subject to Class 1 National Insurance contributions (or would have been if your earnings were high enough). This is stated here in the HMRC Statutory Payments Manual: https://www.gov.uk/hmrc-internal-manuals/statutory-payments-manual/spm171000

'Any payments which are liable for Class 1 NICs, or would be if they were high enough are included.'
Your monthly earnings appear to be below the tax threshold and just above the Class 1 threshold for 2023/24. In any event, the gross earnings (£555) would ordinarily be used, however, you will need to check whether yours and your employer's pension contributions are deducted on a gross tax basis or net tax basis. If you have a salary sacrifice arrangement, for example, only the remaining earnings (£495) would be subject to NI and would be used for calculating your average earnings for SMP.

I suggest checking your payslips or last P60 and asking your employer to clarify how your pension contributions are paid. If there is still a dispute and you think your employer has refused your SMP incorrectly you can ask HMRC for a formal decision. You should call HMRC Statutory Payments Disputes Team on 0300 322 9422 to start a claim.

In the meantime I suggest making a Maternity Allowance claim to protect your position and while HMRC make a decision on your SMP. Claims for Maternity Allowance (MA) can only be backdated for a maximum of three months. You can claim MA here: https://www.gov.uk/government/publications/maternity-allowance-claim-form  You should send in payslips covering 13 weeks (or 4 months if you are paid monthly) in order to prove your earnings. You should send payslips in which you earned the most in order to maximise your MA payments. You can send in payslips for any weeks/months in your 66 week test period.

Please note: if you are claiming Universal Credit, any MA is deducted pound for pound so please get further advice on your benefits if necessary as unfortunately you may not be any better off by claiming MA and it could impact your UC and any other benefits you claim.

Dear Mum2beeee

Congratulations on your pregnancy.

You will remain eligible for SMP as long as:

· You are on the payroll (which you will be based on the information provided) in the ‘qualifying week’ - the 15th week before the expected week of childbirth
· You have given the correct notice in relation to your pregnancy/start of maternity leave and proof (MATB1)
· have been continuously employed for at least 26 weeks up to any day in the qualifying week
· earn at least £123 a week (gross) in an 8-week ‘relevant period’ - the 8 weeks or 2 months before the end of the qualifying week.

If your due date is 12/7/24, your qualifying week is 24 - 30 March 2024.

You are entitled to take up to 52 weeks maternity leave, although SMP is only paid for 39 weeks. Your employer should assume that you are taking the full year of maternity leave and should not be pressing you to make a decision about returning at this stage. If you want to return to work earlier e.g. after SMP ends, you should give at least 8 weeks' notice to return.

If you want to resign from your job and not return to work you will need to give the notice period in your contract. If your notice period is one month, you can resign a month before your maternity leave ends. You will continue to accrue annual leave, as if you were at work, during your maternity leave and you are entitled to be paid for your accrued holiday on resignation. If you resign immediately after your qualifying week you would not be eligible for accrual of annual leave from the date that your employment comes to an end.

In order to keep your options open and to protect your position, I would recommend letting your employer know that you will be taking your maternity leave at this stage and that you will give them plenty of notice if you decide not to return. You can give more than your contractual notice if you wish to tell them in advance but on the understanding that you will be paid your full holiday pay for your maternity leave period.

If you do wish to resign after the qualifying week (which ends on 30 March), your employer must still pay your SMP if you have met all the qualifying conditions above. They can pay your SMP in a lump sum, if they wish to, if your employment has ended. Tax and National Insurance will be deducted on the lump sum in the month in which it is paid. If your employer refuses to pay SMP because you have resigned you would be able to claim it from HMRC Statutory Payments Disputes Team on 0300 322 9422.

I hope that helps.

Sear Shf12

Thanks for your query. I note that you are on maternity leave until 30 June 2024, and will then use your accrued annual leave from 1 July until you return to work. How much holiday you will need to take each week from 1 July depends on when your new 4-day week contract starts.

• If the new contract formally starts on 1 July (i.e. after your maternity leave ends, even though you are still on holiday), then you will only need to take 4 days annual leave to have a full week off work, as the fifth day is your non-working day. For example, if you returned to work on 1 August, this would mean taking 19 days of annual leave from 1 July until 31 July based on a 4 day working week.
• If your new 4-day week contract doesn’t start until a later date, then you will need to use 5 days of holiday per week to have a full week off work, as your old contract terms would still be in place.
• If you signed a new contract to agree the change to a 4 day working week then that contract should set out when it becomes effective and therefore when you start accruing holiday pro-rated to a 4 day working week. You should always ask for changes to employment terms to be agreed and documented in writing.

Remember that any holiday that you accrued whilst you are on maternity leave will be calculated by reference to the employment terms that applied before you went on maternity leave, because your employment contract remains in place on the same terms whilst you are on maternity leave. So if you worked full time for 5 days a week and took a full year/52 weeks of maternity leave, you will have accrued a further 28 days holiday (this is the legal UK minimum for a full time employee) during your maternity leave. This entitlement is in addition to any holiday that you carried over from previous holiday years if you were unable to take it because you were on maternity leave.

I recommend that you check with your employer to see if there are any company rules around when carried over holiday needs to be taken by, as you may still have holiday from 2023 or the holiday you accrued whilst on maternity leave to use up. The general rule for full time employees is that you need to use up carried over holiday within 18 months of carry-over, or you lose that amount. Your employer may have a holiday policy which sets out any other rules that apply to you.
I hope that helps.

Dear dsk86

Thank you for your query. I can understand the frustration at seeing your peers progress ahead of you in this manner whilst on maternity leave.

With regards the promotions of your two colleagues whilst you were on your first period of maternity leave, were they promoted ‘in role’ based on skills and experience or were there promoted vacancies available to apply for?

Your employer must not discriminate against you because you are pregnant or on maternity leave with regard to promotional opportunities. For example, it would be discriminatory for them to not tell you about a suitable promotion opportunity that arises whilst you are on maternity leave. Similarly, if your employer was promoting individuals ‘in role’ based on skills and experience, it would be discriminatory for them not to promote you if you had the required skills and experience because you were on maternity leave. It may be that you are not clear on how the promotions came about, or what the requirements to be promoted were on that occasion. It would be worth discussing this with your employer and asking for written confirmation of this. Whilst I appreciate that they may not formally publish the requirements for promotion anywhere, they should be able to outline to you what factors are relevant to the decision as to whether a team member should be promoted. That will allow you to assess whether you reasonably believe that you met these requirements at the time and should have been promoted alongside your colleagues.

If you believe you have been unlawfully discriminated against, I would flag that there is a three-month time limit for starting employment tribunal claims. This runs from the date of the discriminatory act. On the face of it, given you have had a subsequent period of maternity leave since the failure to promote you, you are therefore likely to be out of time for raising that issue. However, if you can show a continuing act of discrimination (which might be arguable if there has been an ongoing refusal to promote you in circumstances where you have meet the relevant requirements) the clock would not start to run until the end of the course of discriminatory conduct.

Notwithstanding this, litigation should be a last resort and it is important to focus on your current concerns and how you would like your employer to resolve them. As I understand it, you consider that you should have returned to a promoted role, rather than your original role from before your first maternity leave. The law protects you against unfavourable treatment as a result of being on maternity leave. However, if time spent on maternity leave has meant that you are lacking some skills or experience which would be required to be promoted (simply due to not having had sufficient exposure), your employer is not required to ignore this gap, and promote you none-the-less. The situation would be different if promotion is typically based on time spent in a role, whereby you should not be disadvantaged by time spent on maternity leave. If you can understand your employer’s requirements for promotion through discussion with them, that will enable you to determine whether you meet these requirements, and therefore whether you should be considered for promotion. If you can demonstrate that you do meet those requirements, it would be helpful to provide evidence of this to your line manager or HR to support your case.

If you are still working towards the requirements, I would suggest sitting down with your manager to agree a development plan to help you address any gaps to maximise your prospects of promotion in the near future.

If you have been unable to resolve it informally or by talking to your employer, you can use your employer’s grievance procedure to get the matter investigated by an independent manager. I recommend using your grievance as a last resort as trying to keep discussions with your employer friendly and constructive and focusing on practical solutions can be more helpful than going over what has gone wrong. That will maximise the likelihood of a successful outcome for you, whilst minimising any potential for damage to the ongoing employment relationship.

I wish you all the best.

Dear KCBunny

Thank you for your query and congratulations on your pregnancy. I understand this must be a stressful time for you.

Statutory Maternity Pay (SMP)

If you have been continuously employed by your employer for at least 26 weeks up to any day in the 'qualifying week' (the 15th week before the expected week of childbirth which for you is 4 - 10 February) and have earned an average salary of at least £123 a week (before tax) in the 8 weeks/2 months prior to 10 February 2024), you are entitled to SMP. This is the case even if you are made redundant in or after your qualifying week.

If you have not already done so, you will need to give your employer at least 28 days' notice of the date you intend your SMP to start and you must send them your MAT B1 maternity certificate from your midwife or doctor, confirming the date of the expected week of childbirth.

If your redundancy consultation period is due to end on 12 April then it is likely that, if the company goes ahead with its proposal, you will receive notice of redundancy thereafter. You would usually either be asked to work your notice or you will receive a payment in lieu of your notice period. If you do not feel well enough to work your notice period you should ask your employer to consider making a payment in lieu of notice to you. If you are asked to work your notice then you can take sick leave in the normal way by calling in sick note and providing a 'fit note' but it's worth noting that if you are unable to work due to a pregnancy-related illness in the last four weeks before your expected week of childbirth (from 21 April 24), your maternity leave/SMP will start automatically from the first day of absence.

Given that you plan to start your maternity leave on the 16th May, it's important to note that if you are made redundant before then your employer must start your SMP from the day after your employment ends.

Other payments you may be entitled to

Regarding your holiday entitlement, if you are asked to work your notice period then you should still be able to take your accrued holiday before the redundancy takes effect. It's worth speaking with HR to confirm this and to check how much holiday you will now accrue up to the date that your employment is ending. If you are paid in lieu of notice then your employer will need to pay you for any accrued but untaken statutory holiday at the point you are made redundant.

Whilst I appreciate you have not been employed with your current employer for 2 years, it's worth checking any redundancy policy in place and your contract of employment as some employers may still make a redundancy payment.

Other considerations

Although you mention that you have been with the company for less than two years, which typically affects redundancy pay and unfair dismissal claims, there are special protections in place for pregnant employees. You cannot be selected for redundancy because you are pregnant, or for factors related to your pregnancy. For example, your employer cannot take into account time off because of your pregnancy or upcoming maternity leave. The redundancy also needs to be genuine – this will be for one of the following 3 reasons – and the process needs to be fair:

1. Your place of work closes or moves (this can be temporary or permanent)
2. The type of work you do will no longer be carried out at your place of work
3. Fewer employees are needed to do the particular type of work that you do

If you have reason to believe that you may have been selected for redundancy on the basis of your pregnancy, then that can be raised with your employer as part of the consultation process. You are entitled to ask for a copy of the criteria your employer used to select you and the scoring of those who are in the selection pool and supporting evidence. I recommend using the consultation process to ask as many questions as possible (e.g. whether there is a genuine redundancy situation if they are outsourcing the work to a freelancer, suggesting ways to avoid redundancy such as arranging cover for your maternity leave to allow you to return etc., checking which posts should be in the selection pool, considering the selection criteria and whether there is any obvious discrepancy with your colleagues).

Your employer must also look for alternative employment. From 6 April 2024, if there is a suitable alternative vacancy and your employer does not offer it to you, you may have a claim for automatic unfair dismissal (you do not need two years' service) if you are made redundant during pregnancy or maternity leave.

If it can be established that a dismissal is because of your pregnancy or intention to take maternity leave, it may be an automatically unfair dismissal and/or pregnancy discrimination, and you do not need to have worked with the company for 2 years to bring these claims.

Please note, if you want to start a claim you must contact ACAS within 3 months, less one day, from the date of the dismissal. You can complete an online form here to ACAS start early conciliation: Early conciliation or telephone the ACAS helpline: 0300 123 11 00.

We hope this helps and wish you and your baby all the best.

Dear Mama2522

Thank you for your query. I can understand your frustration that you feel that you are not being given a fair shot at the promoted role. Unfortunately, it is not particularly uncommon for a role to sometimes be created with a particular candidate in mind. So long as your employer has not overlooked you for a discriminatory reason and has followed a fair process, there’s unlikely to be very much that you can do about it unfortunately.

To respond to your specific questions:

What are my rights when it comes to this promotion?

Your employer must not discriminate against you with regard to promotional opportunities because you are pregnant or about to go on maternity leave. It would be discriminatory to them to not give you the job either because you are pregnant or because you are about to go on maternity leave.

Can the timing of this promotion or the outcome be perceived as maternity discrimination?

The fact of the role being announced when it has been would not – without something more – likely constitute pregnancy or maternity discrimination. However, if: (i) the timing of the promotion was intended to dissuade you from applying (or make it difficult for you to apply); or (ii) you were not successful in your application because you are pregnant/about to go on maternity leave, that would constitute discriminatory treatment. The challenge for you is likely to be in being able to prove that that is the case (more on that below).

I note you believe that the role may have been created with your colleague in mind (who is a long-term friend of your manager and has previously expressed being a flight risk). If that is the case, whilst clearly this would be “unfair” to you in the general sense, it would not be discriminatory if your pregnancy/maternity (or some other protected characteristic such as your sex) was not a factor in the decision to give him the role instead of you (and rather, for example, the decision was made to stop him from leaving). So long as your employer does not act in a discriminatory way when making the decision whom to appoint, there is very little you can do unfortunately if you simply believe you are the better candidate.

If the decision to appoint your colleague over you could not be justified in any objective sense with regard to your respective skills and abilities, this might suggest a discriminatory motive. The decision could potentially also constitute a breach of the implied term of mutual trust and confidence. If you believe this to be the case, I would suggest you take some legal advice as soon as possible.

If so, what can I do about it and how can I evidence it?

If you believe you have been unlawfully discriminated against, it would ultimately be open to you to bring a claim to the employment tribunal. I would flag that there is a three-month time limit for starting employment tribunal claims. This runs from the date of the discriminatory act. The first stage in the process is to contact ACAS to start the pre-claim early conciliation process.

As noted above, direct evidence of discrimination is often tricky to find. This is a challenge as, if you were to bring a claim for discrimination, the onus would be on you to establish facts from which a Tribunal could conclude that there potentially has been discrimination. Some areas for consideration:

• Does your company have a policy which sets out how promotion processes will be carried out? Potentially a recruitment policy or equal opportunities policy? If so, are they acting in accordance with that policy? If not, this may suggest that selection is not being based strictly on demonstrable merit.
• I note that you state that the promoted role focuses more on the tasks carried out by your colleague. I would suggest asking your manager why those tasks are the focus of the promoted role. Is there a reasonable explanation for why this is?
• If you remain of the view that the process is unfair/rigged, it may be worth flagging this to HR/a more senior manager now before a final decision is made in respect of the role (and whilst there would still be an opportunity to potentially influence the outcome of the process).
• If you are unsuccessful in your application, you should ask for specific feedback in writing. That will help you ascertain whether there is anything there which would indicate that your pregnancy or maternity (or potentially even your sex) was a factor in the decision-making or put you at a disadvantage.

I wish you all the best.

Dear Yumis

Thank you for your enquiry and I am sorry to hear of your sudden dismissal.

Rules and qualifying criteria for statutory maternity pay:

1. To be eligible for statutory maternity pay (SMP), you must be on your employer’s payroll in the 15th week before the expected week of childbirth. This is known as the ‘qualifying week’. If your baby is due on 27 June, your qualifying week is next week, 10 - 16 March.

1. You must give your employer the correct notice, which is 28 days’ notice of the date you would want to start SMP.

1. Provide proof of pregnancy. This will usually be a doctor’s letter or maternity certificate (MATB1 certificate). Midwives and doctors can issue these from 20 weeks before the due date. You must give the MATB1 to your employer and as you have already spoken to payroll, I suggest sending it to payroll and/or HR if you don't want to give it to your manager.

1. You must have been continuously employed by your employer for at least 26 weeks up to any day in the qualifying week. This means you need to have started your job before 23/9/23 (which you did); and

1. You must be earning at least £123 a week (gross) in the 8 weeks or 2 months before 13 April.

Based on the information provided, you will meet the qualifying conditions for SMP if your contract has been extended into all or part of the week of 10 - 16 March. If you are going to be employed until 15 March your employer must pay your SMP as HMRC have confirmed. Your employer can claim reimbursement for your SMP: https://www.gov.uk/recover-statutory-payments

If you are employed up to 15 March and your employer does not pay your SMP, you should contact HMRC on 0300 322 9422 and ask for a formal decision. They will order your employer to pay your SMP or pay it directly if your employer has not paid it.

Your SMP will start from the 11th week before your baby is due (11/4/2024) if your job has ended by then and will last for 39 weeks.

Pregnancy and maternity discrimination

To be successful in a claim for pregnancy and maternity discrimination related to your dismissal and an automatic unfair dismissal claim on the grounds of pregnancy, you would need to demonstrate to a Tribunal that you were dismissed because of your pregnancy. These are both day one rights and you do not need two years of service. However, if you had not told your employer about your pregnancy before you were dismissed, this may make your claim more difficult. If it was obvious that you were pregnant, this may help, and you should consider what other evidence to show it was pregnancy-related.

If you have not yet appealed your dismissal (and/or raised a grievance about your dismissal), making clear that you believe you were dismissed because you were pregnant, then you are encouraged to do so. If your employer does not investigate your complaint, or does not resolve the situation to your satisfaction, then you should consider contacting ACAS to commence the Early Conciliation process in advance of potentially bringing a Tribunal claim. You must contact ACAS within three months (less one day) from the date of the act of discrimination or last in a series of acts.

You can complete an online form here to start ACAS early conciliation: Early conciliation or telephone the ACAS helpline: 0300 123 11 00. You must start Early Conciliation before the time limit expires wherever possible or your claim can be refused. An ACAS conciliator will try to help you and your employer reach an agreement. You should think about what you would be willing to settle for e.g. loss of wages until the start of your maternity leave and any other losses. If you are unable to reach agreement, ACAS will issue an early conciliation certificate and you can start a claim but I suggest seeking further advice.

I hope that is helpful and wish you well.

Dear NimbleManatee

Thank you for your enquiry and congratulations on your new role.

To answer your queries, unfortunately the regulations do not state what you should be paid for a KIT day which is not very helpful. KIT days are optional and the rate of pay (and whether any maternity pay will be offset against it) will have to be agreed in each case. If your employer is offering KIT days on your 'normal contractual rate' this is likely to be based on your contractual terms and conditions that applied immediately before the start of your maternity leave as these continue during your maternity leave period.

I understand that you have not yet been provided with a contract for the new role, however, it is important to check when the new contract or the variation to your existing contract starts. It may be that your employer intends for the new role to start from the date of your return from maternity leave and, if that is the case, any increase in pay will only apply from that date. If the new contract takes effect during your maternity leave, any pay increase before the end of your maternity leave would mean your employer would have to recalculate your average weekly earnings for SMP and may have to pay you some extra maternity pay for the first 6 weeks of your SMP period (the part based on average weekly earnings).

In summary, your KIT days will be based on your current contract if your new contract is going to start from the date of your return to work. If you and your employer have agreed that the new contract started on the date agreed or when you were offered the role you could argue that any KIT days worked after that date should be paid at your new rate and your employer should look at whether you are entitled to any increase in SMP. It is also open to you to refuse to work KIT days unless you are paid at the rate for your new role but you would obviously want to consider whether this is a route you want to take.

Secondly, as you and your manager have agreed that you should use your annual leave to achieve a four day week for a period of five months, I suggest asking for a meeting with HR to put forward your suggestions and to find a way forward. Unless your employer/HR can point to a provision in your contract or maternity policies that restricts when holiday can be taken after maternity leave it would be difficult for them to refuse your proposed arrangement. Many employers prefer and encourage employees to use up their accrued annual leave in a block immediately after the end of maternity leave to avoid returning to work with a large amount of leave still to take, however, they cannot force you to take leave in this way if there is nothing in their policy.

If you have been unable to take the statutory minimum holiday of 28 days per year (including bank holidays) because of your maternity leave, you must be allowed to carry it forward and to take it in the following leave year. If your employer provides additional annual leave this will be contractual holiday and you would need to check your contract to see how much can be carried forward each year and whether there is a limit on when it can be taken. In general holiday must be taken by agreement, this is guidance from ACAS: https://www.acas.org.uk/checking-holiday-entitlement/asking-for-and-taking-holiday

Your employer can advertise a vacant post, however, I understand that this is making you nervous if you have not yet had a written contract. I suggest following this up with your employer. If you have already been offered the new role in writing and had the terms and conditions confirmed by letter/email, this is written confirmation of a variation to your contract and you can rely on it.

I hope that helps and that you can enjoy the rest of your maternity leave.

Dear Frog35

I’m sorry to hear about this and I can understand absolutely why this would be demoralising to find out.

Paying a male employee more than a female employee is potentially unlawful on the basis of equal pay legislation which in simple terms requires that men and women should get equal pay for equal work or work of an equivalent value. The Equality Act also makes pay differences unlawful if the discrepancy in pay comprises less favourable treatment on the basis of gender or on the grounds of your pregnancy or maternity leave.

However, in his instance it appears your employer would respond to such complaints on the basis that the discrepancy in pay has nothing to do with gender or your maternity leave. They have simply had to pay more money to your temporary replacement because the market for bringing someone in on a short fixed term contract at short notice dictates that you need to pay a higher salary. If this temporary replacement had been a woman it would have made no difference because the increased pay was related to the nature of the short term employment status rather than gender or maternity related status.

It sounds as though you feel these grounds are questionable on the facts because you gave the organisation advance warning so they would have had ample time to find a replacement and in the past when you have done shorter contracts for them they have not paid you more. Whether these challenges to the factual defence are sustainable will of course depend on a granular analysis of the supporting evidence. If for example the company has a paper trail of the search they conducted and what salaries the recruiters involved suggested at the time they were hiring, along with what the instructions were for the search from the company, this should help clarify the position.

If you do feel that you would like to take this further I would suggest that something in writing from you would be sensible and to ask this to be fully investigated by the company. You can raise this informally to start with and use their grievance process if you wish to take it further. It will of course be a matter for you to decide whether you wish to take this next step set against your assessment of how the company will react to this and whether this will reflect negatively on your future prospects with the organisation. If there is a direct causal link between any negative treatment of you as a result of raising a grievance this could amount to victimisation. This will be a matter for you to weigh up when deciding whether you wish to accept this position or raise a further complaint.

I hope that helps.

Dear Absc

Thank you for your enquiry. If you have been unable to take the statutory minimum of 28 days holiday (including bank holidays) because of maternity leave, you must be allowed to carry that leave forward. However, if your employer provides any additional contractual holiday, how much you can carry forward and when it must be taken by will depend on your contract or your employer's policies.
In general annual leave must be taken by agreement with your employer. This is the ACAS guidance on annual leave: https://www.acas.org.uk/checking-holiday-entitlement/asking-for-and-taking-holiday

Your employer is not allowed to pay for your accrued annual leave unless you are resigning from your job. This is because paid time off is a health and safety right and employers cannot force you to be paid instead of taking the time off.

Right to return to work:
If you return to work in the first 26 weeks of your maternity leave, you are entitled to return to the same job on the same terms and conditions unless your role becomes redundant.
If you return to work after more than 26 weeks of maternity leave you are entitled to return to work to the same job, on the same terms and conditions as if you had not been absent unless your employer can establish that it is ‘not reasonably practicable’. If there has been a restructure or other staff have agreed to a new working pattern, it may be difficult to show that any changes relate to your absence on maternity leave but you should get more information from your employer.
I suggest letting your employer know in writing that you are unable to work the new days/hours because of your childcare availability. It is best to raise it informally to start with but you can raise a grievance if you are unable to resolve it. It may be indirect sex discrimination if your employer is insisting on a new working pattern that you are unable to work because of your childcare responsibilities and I suggest seeking further legal advice if you are unable to negotiate a return on your normal working days. You may be able to get free legal advice and representation from your union (if you are a member). You should speak to their legal department as soon as possible. You should also check whether you have any Legal Expenses cover included on any home or car insurance policies you hold as this may cover free legal advice and representation for employment claims.

I hope you are able to resolve things.

Dear overgrowngrass

Thank you for your enquiry.

You have the right to return to the same role on return from maternity leave. If you take a full year of maternity leave, you still have the right to return to the same role, however, your employer can offer you a suitable alternative role if they can show that it is 'not reasonably practicable' for you to return to the same role. You would need to argue that you have the right to return to your old role as your employer is obliged to keep your job open for you for up to a year and that keeping your maternity cover in the role is not a good enough reason to offer you an alternative job.
If your employer no longer needs two people for the same job, this will be a redundancy situation and your employer will have to make one position redundant. You will have some protection under the new rules that are being introduced in April 2024 as this will give you the right to be offered a suitable alternative vacancy up to 18 months from the expected week of childbirth (or date of birth if you notify your employer of that date). This will give you priority in being redeployed in a redundancy situation.

Please also note your maternity cover will have less than two years' service and will not be entitled to any statutory redundancy pay or protection from unfair dismissal.

As this is likely to be a year or more ahead it is possible that things will change and your employer may need additional staffing when you come to return, or you and your maternity cover may both want part-time work or a jobshare. I can appreciate your concern at present and I suggest keeping in touch with your employer nearer to your return to work to explore the situation and to make them aware of your rights.

I hope all goes well.

Dear Elsa06

As you have correctly stated, up to 39 weeks of Maternity Allowance is available for those who are self-employed. My understanding is that you meet the eligibility criteria for Maternity Allowance so I won’t include them here but for future reference, or for anyone else reading this, they can be found here: Maternity Allowance: Eligibility - GOV.UK (www.gov.uk).

As an employee, your partner may be able to take Shared Parental Leave and Statutory Shared Parental Pay assuming your partner meets the eligibility criteria (found here: Shared Parental Leave and Pay: Eligibility for birth parents - GOV.UK (www.gov.uk).

You must take a minimum of 2 weeks of Maternity Allowance immediately after the birth but otherwise you can transfer any unused weeks to your partner to take as shared parental leave and pay. This will reduce your Maternity Allowance period.

You will need to 'curtail' (reduce) your Maternity Allowance in order to give your partner access to up to 50 weeks of Shared Parental Leave and up to 37 weeks of Statutory Shared Parental Pay (ShPP). For example, if you take 26 weeks of Maternity Allowance, your partner can take up to 26 weeks of leave and up to 13 weeks of ShPP. ShPP is paid at the same rate as Maternity Allowance: £172.48 per week or £184.03 per week from April 2024 (or 90% of your average weekly earnings if lower). Your partner must give at least 8 weeks' notice to take shared parental leave/pay. Shared parental leave and pay can be taken at any time in the year after the birth of your baby.

Your partner may be entitled to additional shared parental pay, if provided by your partner's employer, but it is important to check their workplace policy very carefully as shared parental leave is a complex scheme and employers can attach their own terms and conditions.

Your partner may also be entitled to up to two weeks' paternity leave and pay, which is separate from shared parental leave and pay and must be taken before any period of shared parental leave. Paternity leave is also paid at the statutory rate but, again, your partner's employer may provide additional pay under their policy.

There is not necessarily a “best option” as it may depend on how much time off you feel you need after the birth, how much you both earn and whether your partner's employer provides enhanced pay. I advise checking the employer's policies carefully and I hope this gives a good overview of the options available to you.

Dear ELB2

Thank you for your enquiry and I'm sorry to hear about your sudden redundancy.

As your contract states that your notice period is 4 weeks and I understand that you are not agreeing to a shorter period, you should contact your employer immediately (I suggest doing it in writing/email) and ask them to confirm that your contract will be ending at the end of March. Failure to give your contractual notice period is a 'wrongful dismissal'. This is where there has been a breach of contract and is different from an unfair dismissal claim. You do not need two years service to claim wrongful dismissal.

Your qualifying week for Statutory Maternity Pay is next week 10 - 16 March. As long as you are employed in at least one day in that week you will be eligible for SMP if you meet the other qualifying conditions. This means you need to have started your job before 23/9/23 and to have earned at least £123 per week in the 8 weeks or 2 months prior to 16 March 2024. Your employer can claim reimbursement for your SMP and I suggest sending them this link and asking them to confirm your 4 week notice period and that you have qualified for SMP: www.gov.uk/recover-statutory-payments They must still pay your SMP for the full 39 weeks even if your contract ends at the end of March or any day after 11 March.

If your employer ends your contract this week (before 10 March), you can claim Maternity Allowance and you should fill out the application form here: www.gov.uk/government/publications/maternity-allowance-claim-form You will need to send your MATB1 maternity certificate, an SMP1 form if your employer provides one (don't delay claiming if they don't send you an SMP1) and payslips for 13 weeks/4 months. You should send your payslips with your highest earnings in your 66 week test period (this is the 66 weeks before your expected week of childbirth). If you are claiming Universal Credit, any Maternity Allowance will be deducted pound for pound and you should seek further advice on your benefits as it may not be worthwhile claiming.

As you have mentioned, from 6 April 2024 there are some changes in the law and you would have had some additional protection during pregnancy if there are any redeployment opportunities during a redundancy process. Your employer should also give some warning of redundancies and consult with employees affected. As you do not have two years' service you do not have any rights to redundancy pay or to claim unfair dismissal, however, you may have a claim for automatic unfair dismissal and pregnancy discrimination on the grounds that you have been dismissed because of your pregnancy or intention to take maternity leave. It appears that your employer has not carried out a fair redundancy selection process and you are the only employee being made redundant and you should seek further advice.

As mentioned above, you can also claim wrongful dismissal if your employer ends your contract without giving your contractual notice and you can claim for the loss of SMP (this will be for the difference between your SMP and Maternity Allowance which is the first 6 weeks at 90% of your average weekly earnings).

If you want to start a claim you must contact ACAS within 3 months, less one day, from the date of the dismissal. If your employer gives you an opportunity to appeal the redundancy you should appeal and set out the reasons why you consider the redundancy process has been unfair and that you have been selected because of your pregnancy and intention to take maternity leave. You would be expected to raise your concerns with your employer if you are thinking of making a claim.

You can complete an online form here to ACAS start early conciliation: Early conciliation or telephone the ACAS helpline: 0300 123 11 00. You must start Early Conciliation before the time limit expires. An ACAS conciliator will try to help you and your employer reach an agreement. You should think about what you would be willing to settle for e.g. loss of wages until the start of your maternity leave, holiday pay that would have accrued during your maternity leave and any other losses. If you are unable to reach agreement, ACAS will issue an early conciliation certificate and you can start a claim.

I hope all goes well.

Dear Petule

I am sorry to hear that your contract has been ended. This may be a redundancy situation i.e. a 'fair dismissal' where an employer has a genuine reason for reducing staffing.

In order for it to be a fair dismissal they must also have given some warning and considered any alternatives and given the notice period provided by your contract. If you have more than two years' service they must pay you any redundancy pay or notice pay you qualify for based on your length of service. You can find a redundancy pay calculator here: www.gov.uk/redundancy-your-rights/redundancy-pay

If you have at least two years' service you may have a claim for unfair dismissal if you have not been paid any redundancy pay or your employer did not follow a fair process. If you have been employed by this employer for less than two years and you were not given any prior warning or your notice period, or if you think your dismissal was because of your pregnancy or intention to take maternity leave, you may have a claim for automatic unfair dismissal and/or pregnancy discrimination and I suggest seeking further advice. Your employer's reasons are likely to be that they no longer need a nanny as their child has started nursery so it's important to consider whether you can evidence that the termination of your contract was pregnancy-related.

If you need more advice on your rights to redundancy and notice pay and to start a claim, you can speak to ACAS on 0300 123 1100: www.acas.org.uk/your-rights-during-redundancy/redundancy-pay

Maternity Allowance

If your employment has ended before the 15th week before your baby is due, you are eligible for Maternity Allowance (MA) if:

1. You have been employed for at least 26 weeks out of the 66 weeks before your expected week of childbirth. The 26 weeks do not have to be in a row or with the same employer.

1. You earned at least £30 per week on average in any 13 weeks (or 4 months if you are paid monthly) in the 66 weeks before your expected week of childbirth. These weeks do not have to be in a row and can come from any time in your 66 week test period.

MA is paid for up to 39 weeks. It is paid at a flat rate of £172.48 per week (£184.03 per week from April 2024) or 90% of your average weekly earnings if they are lower than the flat rate. You should send in payslips covering 13 weeks (or 4 months if you are paid monthly) in which you earned the most in order to maximise your MA payments.

You will need to wait until you are at least 26 weeks before sending in your claim form. Your MA payments will automatically start from the 11th week before your expected week of childbirth as your job has ended.

You claim MA from the Department for Work and Pensions. You can find the claim form online here: www.gov.uk/government/publications/maternity-allowance-claim-form or you or you can telephone 0800 055 6688 and ask for form MA1.

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

Please note, if you are claiming Universal Credit or intending to claim Universal Credit, any Maternity Allowance is deducted pound for pound so it may not be worthwhile claiming and you should seek further advice on your benefits.

Unfortunately, as your partner is self-employed there are no rights to paid time off after the birth of your baby.

I hope that helps.