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

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Free online advice clinic 4th November - 7th November 2024 - OPEN NOW.

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 November. 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 November. Please give as much information as possible but remember that this is an online forum and can be viewed by the public – including your colleagues and employer. Please don’t name your employer publicly if you are likely to be taking action against them in future. You can use private message to disclose information to the volunteers that you’d rather not make public.

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 click here

Dear TheAmberBee

Thanks for your query.

You will be eligible for SMP if you meet all 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. This means you need to have started your job before falling pregnant. You are still employed during sick leave, annual leave and your current maternity leave.
2. 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. This is your earnings in approximately weeks 18 - 26 of your pregnancy.

You are not required to return to work for a certain period between periods of maternity leave, however, you are likely to need to return to work (or take paid annual leave) in the period above in which your average earnings will be calculated for SMP.

If you do not qualify for SMP for your current maternity leave or the next maternity leave you may be eligible for Maternity Allowance (MA).

You will be eligible for MA if you meet the following employment and earnings test:

1. You have been employed for at least 26 weeks out of the 66 weeks before your expected week of childbirth. The 26 weeks do not have to be in a row or with the same employer. The weeks can be made up of different types of work and you do not need to be currently employed when you make your claim for MA.
2. You earned at least £30 per week on average in any 13 weeks (or 4 months if you are paid monthly) in the 66 weeks before your expected week of childbirth. These weeks do not have to be in a row and can come from any time in your 66 week test period. It is important to send payslips with your highest earnings over the 13 week/4 month period in order to get the maximum amount of MA.

You can claim MA anytime from being 26 weeks pregnant and it is advisable you make an early application to avoid delayed payments. MA can only be backdated for a maximum of three months. You make your claim to the Jobcentre and can get a copy of the form from the Government’s website here: https://www.gov.uk/government/publications/maternity-allowance-claim-form

or you can telephone the JobCentre Plus on 0800 055 6688 and ask for form MA1.

Your work maternity policy may provide additional 'occupational maternity pay'. Any additional maternity pay may have terms and conditions such as a year's employment or a requirement to return to work for a minimum period. If it does not specify a requirement to be in work between periods of maternity leave then it does not apply. It is normally sufficient that you have been employed for a specified period and employment includes periods of annual leave, sick leave and maternity leave.

I hope that helps.

Dear Dream3Boys

Thank you for your query and I'm sorry to hear about your difficult situation at work. If you have only made informal requests so far, we would strongly recommend that you make your request as a formal flexible working request. Your HR department should have a policy for this. If not, there is a statutory procedure and ACAS have further guidance here: The right to request - Statutory flexible working requests - Acas

All employees are entitled to make a request formally for flexible working twice in any rolling 12 month period. You can ask to change your days, hours or place of work under the statutory procedure. If an employer receives a statutory flexible working request, they must:
accept the request unless there's a genuine business reason not to;
consult the employee before making a decision – unless they accept it in full – that usually means having a structured and formal meeting about it;
handle the request reasonably, in line with the Acas Code of Practice on requests for flexible working;
make a final decision, including any appeal, within a maximum of 2 months.

There are only set reasons upon which a decision can be refused and whilst it is not obligatory to communicate these to you, it is usual to do so. You are entitled to appeal if you are not happy with the result. Certainly in the first instance you should follow up any initial discussions you have had under this formal process and follow up further with a member / another member of your HR team if you are unhappy with the process that has been followed. You can make a flexible work request for a temporary change of work location.

Further, in terms of breastfeeding, your employer must take reasonable action to protect your health and safety whilst you are breastfeeding, including things like allowing adequate rest breaks, access to hygienic facilities and access to a private space within which you can breastfeed or pump (and reasonable breaks to do so). If adjustments to your working hours or conditions would not avoid risks to breastfeeding, you should be given a temporary transfer to suitable alternative work.

In the case of McFarlane v Ambacher v easyjet Airline [2016] the Tribunal found that employers must continue to protect health and safety and provide alternative work for as long as breastfeeding continues, where the work presented health and safety risks. This was also following advice of the claimants’ GPs and so speaking to your GP for a letter might also be helpful. You can read a summary of the case here: Landmark ruling for breastfeeding mothers in EasyJet case | Thompsons Trade Union Solicitors

If you feel that the employer has not followed the statutory procedure and/or is discriminating against you as a result on the basis of your caring responsibilities or the fact of your breastfeeding, you may have a claim for indirect sex discrimination, however, these can be difficult claims to bring and we recommend seeking advice on your individual circumstances. There are limited options for free representation for tribunal claims. You may be eligible for legal aid: https://www.gov.uk/legal-aid or you should speak to your union, if you are a member, or check whether you have any legal expenses cover on any home or car insurance.

I hope you are able to resolve it.

Thank you so much! May I also ask with regards to applying for childcare help I understand that I need to have returned to work in order to apply for the government “code” that entitles my baby to subsidised hours. If I am taking the annual leave that I have accrued at the time, does that count as “returned to work”? Thanks

Dear Em1234567

Congratulations on your pregnancy. I will set out your rights to health and safety protection. You must tell your employer in writing that you are pregnant in order to have the right to a risk assessment and reasonable adjustments. Your employer must carry out an individual risk assessment and specifically assess risks in pregnancy. These risks should be kept under review as your pregnancy progresses or as risks change.

Your employer must take the following action to remove any risks such as altering your working conditions or hours of work. If it is not possible to make your job safe, you have the right to be offered safe suitable alternative work on similar terms and conditions that you currently have. This could include working from home in the same or a similar role. If there is no suitable alternative employment available, your employer must suspend you and pay your normal pay.

Working with xrays and lone working are all risks set out in the guidance for employers from the Health and Safety Executive and I suggest showing this to your employer: www.hse.gov.uk/mothers/

It is important to get as much supportive evidence as you can. If you are concerned about any of the risks at work speak to your midwife, GP or other health professionals. They may be able to write a letter to your employer setting out the risks to your health and safety.

You can also find more information about your health and safety rights on the Maternity Action website which may help with speaking to your employer: https://maternityaction.org.uk/advice/health-and-safety-during-pregnancy-and-on-return-to-work/

I hope it goes well.

Dear cobcobma

Thank you for your query and I'm sorry to hear about the difficult time you are having. I will try to answer your queries.

Reasonable paid time off for antenatal appointments

Firstly, you are entitled to reasonable paid time off for antenatal appointments. This includes antenatal appointments and scans throughout your pregnancy and can include relaxation and parentcraft classes if recommended by a health professional.

There is no definition of what is 'reasonable' time off and it will very much depend on the circumstances. It should include travel and waiting time. You would normally be expected to work before or after an appointment but you should make arrangements with your employer if travelling time makes it unrealistic for you to come into work on the same day as an appointment or let your employer know if your appointment is unduly delayed.

If your employer still refuses to pay for a reasonable amount of time off for your antenatal appointment on the 16th, you can claim the pay in an employment tribunal. I suggest speaking to your employer and trying to resolve it informally first. If this is unsuccessful you can raise a grievance. To start a tribunal claim for loss of pay for your appointment, you must contact ACAS to start early conciliation within 3 months from the date of the appointment or last in a series of appointments: https://www.acas.org.uk/early-conciliation
A tribunal would make a decision on whether your employer failed to pay for all or part of the time off you were entitled to.

Sick leave and pay

The other days appear to be correctly classified as sick leave, even though you were referred for urgent scans, as you were not well enough to work. You must follow your employer's normal sickness reporting process for any days of sick leave and you can self certify for the first 7 days before you will need to provide a 'fit note' from a GP. I am unsure if you called in sick but you haven't suggested that your employer has raised this as an issue. Please be aware that you could lose any sick pay entitlement and be treated as absent without leave if you do not tell your employer in time.

These days are clearly pregnancy-related sick leave and you should ensure they are recorded as such as any pregnancy-related sick leave must be recorded separately and must not be used against you in disciplinary or dismissal decisions. It may be pregnancy discrimination if you are disadvantaged because of pregnancy or pregnancy-related sickness.

Any sick pay entitlement will depend on what you qualify for (regardless of whether it is pregnancy-related sickness). You have mentioned that your employer does not offer occupational sick pay. You will qualify for Statutory Sick Pay (SSP) if you earn an average of at least £123 per week in the 8 weeks prior to your first day of absence and you have been ill for more than 3 days in a row (including non-working days).

You’ll only be paid SSP for the first 3 working days you are off sick if you received SSP within the last 8 weeks. This is called linked periods of sick leave and must have included a 3-day waiting period before you were paid SSP. For periods of sick leave to be linked, the periods must:

• last more than 3 days in a row
• be 8 weeks or less apart.

If your employer has wrongly refused SSP, you can contact HMRC Statutory Payments Disputes Team on 0300 322 9422 and ask for a formal decision on your entitlement. HMRC will contact your employer and ask for further information before making a decision on whether you qualified for SSP.

I hope everything goes well for the rest of your pregnancy.

Dear ThatBrightSnail

Thanks for your query.

You will be eligible for SMP if you meet all 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. This means you need to have started a contract before falling pregnant and remain in that contract in all or part of the 15th week before the expected week of childbirth (even one day counts). You are still employed during sick leave 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 you have a series of short fixed-term contracts with the same employer, with no gaps in employment, this could enable you to meet the continuous employment test.

It is unlikely you could rely on a mistake in the end date of your contract as employers are allowed to correct any errors. HMRC would look at the date that the contract ended in practice and this would include the end date stated on the contract and any subsequent amendment because the contract was extended or it was agreed that you would work for a few extra weeks.

If you were not employed continuously for the first 26 weeks of your pregnancy you will not be able to qualify for SMP. The regulations specify a few exceptions where gaps in employment do not break your continuity of service which I will set out below. This does not specify gaps of less than 4 weeks, however, you may be able to argue under the last two bullet points that your employer treats your service as continuous if you have a gap of less than 4 weeks and you can show that that was the case in the contracts that you agreed or the work that you undertook.

• you are absent (for periods of 26 consecutive weeks or less) because of sickness, injury, pregnancy or childbirth
• you have taken a period of statutory maternity leave, adoption leave, paternity leave or parental leave (in which case, that period counts towards your period of continuous employment)
• you did not take maternity leave but you were not working because you had a break to give birth; you worked for your employer before and after the break, and the break is not more than 26 weeks
• your work has temporarily ceased because your employer was unable to offer you any work
• you are away in circumstances in which, by arrangement or custom, your employment is regarded as continuing for some purposes (for example, if you are a teacher employed on term-by-term contracts with the same or associated employers)

If your employer has wrongly refused your SMP, you can contact HMRC Statutory Payments Disputes Team on 0300 322 9422 to ask for a formal decision. You must contact HMRC within 6 months of the payment in dispute. HMRC will contact your employer to ask for evidence and make a decision on your eligibility.

If you are not able to get SMP you can claim Maternity Allowance from DWP although I appreciate it isn't paid at 90% of your average earnings for the first 6 weeks: https://www.gov.uk/government/publications/maternity-allowance-claim-form  

You will meet the qualifying conditions for Maternity Allowance if you have at least 26 weeks' employment in the 66 weeks before your baby is due. The weeks do not have to be consecutive and you do not need to work the full week for it to count. Any claim can only be backdated for a maximum of 3 months so you should apply within three months of stopping work at the latest or within 3 months of the 11th week before your expected week of childbirth if your contract has ended already.

You may want to apply for Maternity Allowance while you wait for HMRC to make a decision on your eligibility in order to have some maternity pay from the date you stop work or to protect your position if HMRC decide that you are not eligible for SMP.

I hope that goes well.

Dear PRMum27

Thank you for your query. I'll do my best to clarify things based on your situation.

1. Holiday Accrual During Maternity Leave

You are entitled to continue accruing holiday (the legal minimum is 28 days (pro rata if you are part-time) of paid leave per year) while you're on maternity leave. Whether you are on ordinary maternity leave (up to 26 weeks) or additional maternity leave (26 weeks to 52 weeks), holiday entitlement still accrues during the while of your maternity leave, as you remain employed during this period.

1. Taking Holiday During Maternity Leave

Maternity leave and annual leave are two separate rights and you are entitled to both. You cannot take annual leave during your maternity leave so you would need to take it when your full year of maternity leave ends or give at least 8 weeks' notice to end your maternity leave early and then book your annual leave. Any holiday should be booked in the normal way in your workplace.

I recommend making it clear to your employer whether you are taking the full year of maternity leave or give at least 8 week's notice to end your maternity leave earlier. Any annual leave should be booked or agreed with your employer separately.

1. Paid Holiday When Returning to Work

As women are often returning to work after maternity leave with a lot of accrued annual leave (and which they may be carrying forward from the previous leave year), many employers will ask you to take it immediately after maternity leave. Whilst this gives you a longer period of time off it is not technically 'extending' your maternity leave as you are moving from maternity leave to annual leave. During maternity leave you will only receive the maternity pay you qualify for and may then be taking the final 3 months of unpaid maternity leave but annual leave must be paid at your normal rate of pay.

If your employer is saying you can't take holiday and be paid for it (and instead must take it to extend your leave), this may be incorrect, as generally, you should be able to take your accrued holiday and still receive the normal pay for those days off.

If you're returning to work and using your accrued holiday, whether immediately after your maternity leave or later in the leave year, you should still be paid for those holiday days at your normal salary rate. Any accrued holiday should be treated as paid time off.

1. Childcare Funding Eligibility

Unfortunately we can't advise on eligibility for help with childcare costs but you can get advice from the HMRC Childcare Service: 0300 123 4097 and I suggest seeking advice about the impact of taking maternity leave and then paid holiday.

It seems like your employer may have given you misleading information the last time you returned from maternity leave. Annual leave is a health and safety right and you are entitled to a minimum of 28 days paid holiday per year. An employer must allow you to take the paid holiday each year and should only pay for outstanding holiday if you are resigning.

I suggest trying to resolve it informally initially by speaking to your manager and/or HR. You can show them some information from ACAS: https://www.acas.org.uk/your-maternity-leave-pay-and-other-rights/holiday-and-maternity-leave They may be willing to pay you for the loss of holiday pay. I'm unsure from your query how long ago you took your last maternity leave/annual leave as there may be time limit issues with now bringing a claim for loss of holiday pay but you may want to seek further advice from ACAS on 0300 123 1100 if you are unable to resolve it with your employer.

Dear BlueGoosey

Thank you for your query. I am sorry to hear about your redundancy. You can be made redundant during pregnancy and maternity leave if it is a genuine redundancy situation (e.g. reduction in work) and you have not been selected because of your pregnancy or intention to take maternity leave. However, you have some additional protection over and above an employer's obligation to redeploy 'at risk' staff wherever possible. You have the right to be offered a suitable alternative vacancy if one is available if your role is at risk of redundancy during pregnancy, maternity leave and for up to 18 months from the date of birth. We have more information about redundancy protection on the Maternity Action website here: https://maternityaction.org.uk/advice/redundancy-during-pregnancy-and-maternity-leave/

If your employment ends, your employer can pay your Statutory Maternity Pay and any enhanced maternity pay that has been agreed in a lump sum. It is at your employer's discretion but they are likely to do this if your employment is ending. You will pay tax and NI on the lump sum in the month in which it is paid. You may be able to get a tax refund and you should speak to HMRC.

Unfortunately, I can't advise on eligibility for different types of help with childcare costs but HMRC Childcare Service can advise on entitlement to 30 hours free childcare for 3 and 4 year olds, 15 hours free childcare for 2 year olds and tax free childcare, as well as using your childcare account.
HMRC Childcare Service: 0300 123 4097 https://www.gov.uk/government/organisations/hm-revenue-customs/contact/childcare-service-helpline

Thank you to our volunteer lawyers. We hope you find it helpful. We know some of you are still waiting on a reply to your query and we will post all outstanding responses tomorrow. Thank you!

@MaternityActionfreeadvice Hi, thank you for the advice on my previous post. I really appreciate it. And I do have another question unrelated to my previous post, so I think I’d better start a new post for this.

I’m working full time in a company and I was told that we could apply for hybrid/ work from home once we work for more than a year. And now the CEO has taken over the operations and unlikely to offer hybrid/ work from home in our office.

However, when I bring it up to my manager, asking if it is possible to get hybrid remote for me. His answer is No, because I will be distracted by my child at home. I feel bad hearing this reply as I do understand it is the employer’s decision to provide hybrid work or not, however my manager simply rejected my request and the reason given is due to my childcare. I wonder if he is legal to say this?

thank you for your advice.

Hi,

I'm getting a pay increase (yay!), which will kick in in January. I'll be going on maternity leave a few weeks before that. My employer offers a salary top-up on top of SMP for the first 6 months of my leave. My questions:

• I understand that my SMP from January onwards will be recalculated to consider the increased pay, is that right?
• Am I entitled to that same recalculation for the top-up that my employer offers? I.e. are they legally expected to top-up to my new salary from January onwards, or is it at their discretion?
• SImilar question but for pension contributions: what happens to my (employer) pension contributions from January onwards (also a % of my salary)? Should they change based on my new salary?

Many thanks!

Hello, I have a question about contact during maternity leave.

'While you're on maternity leave, your employer must tell you about important changes that might affect you.' www.acas.org.uk/your-maternity-leave-pay-and-other-rights/while-youre-on-maternity-leave

I'm about to go on maternity leave and asked my employer to contact me via my personal email address about the annual cost of living inflation adjustment at the end of the year, so I know what my payslip should look like for the new year. (I've had multiple issues over the last 2 years with incorrect pay). They advised they cannot send it to a non-work email due to ' confidentiality and ensure secure handling of sensitive information' and so will send to my work email. I asked them to therefore either call me on my personal phone number or send me a letter to my home address to update me of the adjustment. Both of these have been registered on the company's HR system for years and recently updated. I've also asked them to send my payslips to me via my personal email or to my home address while I'm on maternity leave. Normally these payslips are only available for collection.

They have not responded to either point and I'm due to give birth any day now. My question is - does my employer have an obligation to contact me via my personal phone, email or address about the cost of living adjustment as will affect my contractual salary, or are they within their rights to inform me that the information will be available in my work inbox at some point in December? Also do they need to send my my payslips to a personal email/address? I do not want to log into my work systems/ go into the office while on maternity leave and feel that they're asking me to work in order to find out essential information about my salary.

Dear Maternityleavethenscrewedviaredundancy

Thank you for your query and I am sorry to hear about the redundancy situation you are in. I will set out your rights and what to do if you want to bring a claim.

You can be made redundant during pregnancy or maternity leave, provided:
the dismissal is fair, meaning it is a genuine redundancy situation;
a fair dismissal process has been followed; and
you have not been selected for redundancy because of your pregnancy or maternity leave.

If these factors aren’t met, you may have a claim for unfair dismissal and/or pregnancy and maternity discrimination and be entitled to compensation to reflect your loss of employment.

You are protected from maternity discrimination from the point you become pregnant until your maternity leave ends. The protection will restart now that you are pregnant again. In addition, if you have notified your employer of a pregnancy or returned to work from maternity leave since 6 April 2024, whilst you are pregnant and for a period of 18 months from the expected date of childbirth (or date of childbirth if you notify your employer of that date) you have the right to be offered suitable alternative employment (if there are any vacancies) in priority to other employees who aren’t pregnant or returning from maternity leave, adoption leave or shared parental leave.

If your redundancy took effect in the ‘gap’ between when you returned from maternity leave and before you were pregnant again, you may need to bring the discrimination claim on the basis of both maternity and sex discrimination (as maternity discrimination protection may not apply during this period, depending on the timing).

Key questions to establish if you have a claim for unfair dismissal and/or pregnancy and maternity discrimination:

Do you think there is a genuine redundancy reason for your dismissal?
This means either: (i) a business closure, or (ii) workplace closure, or (iii) a reduced requirement for employees to do work of a particular kind. If no – what do you think is the true reason?
It sounds like your employer is relying on (iii). If your role has been split and your work subsumed into other roles, this could be a genuine redundancy. However, if you think your employer deliberately split up your role because you were on maternity leave it may be discrimination and automatic unfair dismissal.

Has your employer failed to follow a fair redundancy process?
Consultation – your employer must consult with you individually and, where it is making more than 20 roles redundant within 90 days at a single establishment, collectively (i.e. via employee representatives who receive information and make representations about the redundancies on your behalf).
Collective consultation - You confirmed that a collective process happened during your maternity leave. We recommend speaking with your employee rep as they should have more information about the process the employer followed, including about pooling, selection criteria and trial periods that may help you assess your claim.
Individual consultation - Your employer must give you a reasonable opportunity to discuss the redundancy and must consider any points you make, even if you are on maternity leave. This requirement may be satisfied if you have had at least 1 meeting with your employer and been given the opportunity to ask questions about the proposed redundancy before being dismissed. Your employer should try to reach agreement with you as part of this process, but it is not required to actually agree. You say that there is no written trail of how your role removal was decided – there is no requirement for your employer to keep a written trail, so this alone doesn’t make the process unfair. However, your employer should clearly explain to you why your role is redundant.
Selection – What reason did your employer give for not pooling your role? There are potentially valid reasons for not pooling (e.g. if your role is genuinely different to all others), however if you think that your role wasn’t pooled and/or you were selected because you were on maternity leave, or pregnant and intending to take maternity leave, this may be automatic unfair dismissal and/or discrimination.
Priority right to offer of suitable alternative employment (SAE) – see above for when this protection applies. If you were not offered SAE when it was available, your dismissal may be automatically unfair and you should get advice on a claim for automatic unfair dismissal. You should seek clarity from your employer about why no other roles were considered suitable. For example, do you think that the newly formed role that your maternity leave cover has taken was a suitable role that should have been offered to you? If it wasn’t, you wouldn’t have a priority right to be offered the position, however you should test whether a fair hiring process was followed and ask your employer to clarify why you did not have the skills for this role. If a suitable role was available but it wasn’t offered to you, was it because it was given to someone else who benefits from this same protection? If so that is potentially fair but your employer should have explained in writing what criteria they used to make their decision and why, and why it wasn’t offered to you.
Trial period – Did your employer discuss this with you (or your elected employee rep) during individual or collective consultation? If you would have been eligible to participate under the terms of the trial period but couldn’t because you were on maternity leave, this could be discriminatory.
Written reasons – if you are made redundant during pregnancy or maternity leave, your employer must give you a written statement of the reasons for your dismissal. If you have not received this, you can make a claim to the Tribunal for 2 weeks’ pay in compensation.
Statutory redundancy pay – have you been paid redundancy pay (see the Government website to calculate the correct amount owed) and your contractual notice and any outstanding holiday pay?

Establishing if a redundancy is legally an “unfair dismissal” or if you have been subjected to pregnancy and maternity discrimination depends closely on the facts. You were right to appeal the redundancy and I am sorry this was not upheld. I am unsure if your grievance raised the same issues but your employer may have considered your grievance and appeal together. You can also make a Data Subject Access Request to your employer (see ico.org.uk/for-the-public/make-a-subject-access-request/) to help you understand what personal data your employer holds on you (such as emails or messages which mention your name). This can be helpful in knowing what happened and may be evidence you have been discriminated against.

Unfortunately there are limited options for free representation for tribunal claims. You may be eligible for legal aid: https://www.gov.uk/legal-aid or you should speak to your union, if you are a member, or check whether you have any legal expenses cover on any home or car insurance.

If you want to pursue a claim for unfair dismissal, automatic unfair dismissal (for failure to offer a suitable alternative vacancy) and/or pregnancy and maternity discrimination, you need to contact ACAS (see https://www.acas.org.uk/early-conciliation) and must file your claim with the Tribunal within strict time limits of 3 months (less one day) of the effective date of termination (meaning the date your notice expires if you were given notice of dismissal, or the date your employment ended, if you were paid in lieu of notice). If you have a claim for discrimination only, you need to bring a claim within 3 months less one day of the act of discrimination or last in a series of acts. A tribunal can consider a claim that is out of time if you can show that you had good reasons and that it is 'just and equitable' but there is no guarantee they will accept a late claim and you should start early conciliation within the time limit wherever possible.

If your redundancy takes effect after the start of the 15th week before your next baby is due, you may still qualify for SMP from your employer. If your redundancy takes effect before the 15th week you will still be able to claim Maternity Allowance for your next baby: https://www.gov.uk/government/publications/maternity-allowance-claim-form

I hope that helps.

Dear MP729

Thank you for your query. You raise 2 issues which I'll reply to below.

Can anything be done about the additional workload I have been given since informing my employer about my pregnancy?
Employers have a duty to protect the health and safety of employees whilst at work. There is also a particular duty to assess the workplace risks posed to new or expectant mothers. As a starting point, assigning additional workloads and management responsibilities to a pregnant employee is unlikely to be consistent with this duty.
Your employer should conduct an individual risk assessment (if they haven’t already done so) of factors that could impact your health and wellbeing at work as a result of your pregnancy. This risk assessment should include discussing with you any concerns you have about how your work could affect your pregnancy, and vice versa. Crucially, your employer should consider altering your working conditions and/or hours of work to avoid any risks to you. Risks could include long working hours and work-related stress, which sounds like exactly the kind of things you are being faced with.
You must notify your employer of your pregnancy in writing in order to be entitled to a risk assessment and reasonable adjustments. You may find this guidance from the Health & Safety Executive useful.
If there are risks at work and your employer fails to undertake a risk assessment or to act on its findings, it may be pregnancy discrimination, therefore it is really important for employers to take the risk assessment seriously.
Please also note that you are entitled to take sick leave if you are not well enough to work. You should report any sick leave that is pregnancy-related or ensure that it is stated on any fit notes from your GP. Pregnancy-related sick leave must be counted separately so that you are not disadvantaged.

What is the deadline for my employer to confirm my maternity benefits?
There is no set deadline by when your employer needs to confirm to you what you will be paid whilst you are on maternity leave. The only legal requirement is that once your employer has received notice of the date you wish to start your maternity leave and your MATB1 maternity certificate, it has 28 days to notify you of the date on which your maternity leave will end (i.e. 52 weeks after the start) and to send you an SMP1 form if you have not qualified for SMP. It is customary to notify you at the same time about the benefits you will receive during maternity leave including the extent of any enhanced pay (i.e. over and above the statutory minimum). However, there is no deadline for an employer to confirm these other details.
We therefore recommend persevering to get an answer from your employer about the details of your maternity leave offering. It sounds like you may have been told orally that you will be eligible for enhanced payments, but if you have anything in writing that would be stronger evidence. Legally, an employer only has to comply with the statutory minimums set out below, but it is possible (and relatively common) for employees to be contractually entitled to enhancements, so it is worth referring back to the conversations/emails you may have had with your employer about a customised package to try to get this confirmed. If your employer does not have a maternity policy, any enhanced package appears to be negotiable in your workplace and I suggest considering carefully how best to approach this, including considering who is likely to make the decision and whether to ask for a meeting to discuss it further.
You will probably be aware that, provided you meet the eligibility criteria (which you can find here), you are entitled to the following as a minimum:

• Statutory Maternity Leave: 52 weeks of leave.
• Statutory Maternity Pay: 39 weeks of maternity pay, comprising: (i) 90% of your average gross weekly earnings for the first 6 weeks; and then (ii) £184.03pw or 90% of your average weekly earnings (whichever is lower) for the next 33 weeks. The £184.03 figure is likely to increase slightly in the new tax year (i.e., April 2025).

I hope it goes well.

Dear omgitshappening

Thank you for your query.

SMP and pay rises
Your SMP is calculated on the basis of your earnings in the 8 week/2 month period prior to the 15th week before your baby is due. If you receive a pay rise between the start of this calculation period and the end of your maternity leave, your employer must recalculate your average weekly earnings for SMP purposes and pay you any additional SMP owing. This is likely to lead to an increase in your SMP for the first 6 weeks of your SMP period (when it is based on 90% of your average weekly earnings). You are then entitled to a flat rate of £184.03 per week (or 90% of your average weekly earnings if lower).

Enhanced maternity pay and pay rises
Any enhanced element of your maternity pay (on top of SMP) is paid by your employer and is a contractual benefit. As such, you will need to check your contract/maternity policy to see how the enhanced maternity pay is calculated and whether there are any provisions about how pay rises will be treated. If nothing is stated it is likely that any pay rise will apply to your enhanced maternity pay from the date of the pay rise.

Pension contributions
Section 75 of the Equality Act 2010 imposes a ‘maternity equality rule’ in respect of occupational pension schemes. This requires pension accrual to be continued during:

1. Ordinary Maternity Leave – the first 26 weeks - whether the leave is paid or unpaid.
2. Any further period of maternity leave which is paid. If you pay any pension contributions, your contribution will be based on the maternity pay you actually receive. Your employer's contributions will continue during any paid maternity leave and will be based on the salary you would have received if you were not on leave.

I hope that helps.

Dear cobcobma

Thank you for your query. If you want to request hybrid working I recommend making a formal flexible work application. A flexible work application is a request to change your days, hours or place of work (including home working or hybrid working). All employees have the statutory (legal) right to make a request for changes to their hours of work, days of work or place of work. This applies from day one in employment and you can make up to two flexible work requests per year.

Your employer may have their own flexible work application form. Otherwise you can use this application form on gov.uk: https://www.gov.uk/government/publications/the-right-to-request-flexible-working-form

Unfortunately the right to ask for part-time work or home-working is a weak right. It is only a ‘right to ask’. There are 8 legal business reasons an employer can give for refusing a request. It is important to think carefully about how the new arrangement would work and any difficulties that might arise on days when you are working from home. Your employer has a duty to consider your request reasonably and in order to do so they would usually be expected to hold a meeting with you to discuss your request and how it would work.

If you need to change your days, hours or place of work because of your childcare arrangements, you should make this clear in your application. Your employer can expect you to have childcare in place for young children so they are likely to be justified in turning down your request if you are asking to work from home while looking after a small child. If your child will be at nursery or looked after by someone else while you are working at home, you should make this clear to your employer so that they cannot use this as a reason to refuse your request.

You can find more information on making a flexible work request on the ACAS website here: https://www.acas.org.uk/making-a-flexible-working-request

I hope it goes well.

Dear LoisxMum

Thank you for your query. I am sorry to hear that you are finding your employer to be so difficult, especially at a time when you must be anxious about your daughter.

To answer your last question first, you would unfortunately not be covered by the changes to the law in April 2024. This applied to individuals whose statutory maternity leave period ended on or after 6 April 2024. It sounds as if yours would have ended before this date (in March 2023). Accrued holidays taken prior to returning to work would not extend this period. In any event, the changes in April 2024 simply extended the protected period during which you would have a right of priority to alternative vacancies. This would therefore only have been helpful to you in circumstances where there are alternative vacancies available (and I note that your employer has not been forthcoming about this so it’s not clear whether this would apply).

From your post, it sounds like both redundancy situations have been poorly managed by your employer. For the purposes of this response, it would be sensible to focus on the current exercise (albeit the earlier exercise provides some helpful context as to how you have ended up in the role you are in). As you may be aware, in order to carry out a fair redundancy process, there are three broad requirements for an employer:

Employees are warned about the redundancy and are consulted with about the proposed redundancy in a meaningful way; and
Your employer adopts a fair basis on which to select for redundancy (i.e. they identify an appropriate pool from which to select potentially redundant employees, and select against proper and objective criteria (where selection is required)).
Your employer searches for and, if it is available, offers you suitable alternative employment.

Based on your post, it sounds as if you have concerns about all three areas. I note that your final meeting was due to take place on 6 November. If this went ahead as planned, have you now been given an outcome/notice of termination? Assuming your redundancy has been confirmed, I would recommend that you utilise any right to appeal against that decision. That will give you a further opportunity to formally put forward the reasons why you believe the process is unfair (i.e. the reasons from your post). Your employer will then be required to formally consider and respond to these points.

To address some specific points and questions from your post:

PILON versus garden leave
You are correct that PILON and garden leave are different things. With PILON, you receive a payment in lieu of all or some of your notice period and your employment ends at an earlier date than it otherwise would have. With garden leave, you remain employed during your notice period and receive payment and benefits as normal – however you are not required to attend work.

Generally, garden leave clauses in an employment contract are drafted in such a way that it the decision whether to place an employee on garden leave at the discretion of your employer. From your post, it sounds like that is the case. This means that, whilst you are free to request that your employer puts you on garden leave if there is a benefit to you in this, there would be no obligation for them to do so and they could opt to make a payment to you in lieu of notice instead if they so wished. Although I would flag that this is assuming that they have the right to make a payment in lieu of notice to you under your employment contract. It is worth checking this point because – if they don’t – that will give you a stronger argument that you should remain employed for your notice period as otherwise they would be breaching your contract.

I don’t think you can legitimately use the flexible working request procedure to request garden leave. This is because it does not fall within the category of things about which you can make a statutory request (i.e. hours, times and place of work). It is essentially a request to remain employed for a longer period which is not the purpose of the statutory regime.

I note you consider that their policy of not allowing garden leave is indirectly discriminatory against you on the basis that it puts you at a disadvantage as a working parent. That is an interesting argument, and I don’t believe this point has ever been tested in a court. Whilst I’m not convinced that the argument would necessarily succeed from a legal perspective, it may be helpful to seek to persuade your employer to reconsider their position.

MP
You mention that your MP has written to your employer and your employer has simply responded confirming that they are dealing with it internally. Would it be possible to ask your MP to follow-up on this if your redundancy has now been confirmed?

ACAS
I note that you have started the early conciliation process via ACAS. This is the precursor to being able to bring an employment tribunal claim so is an important step to protect your rights in this regard. I also note that your employer responded to ACAS in the same way as to your MP. Can you ask the ACAS conciliator to follow this up if things have now moved on? Whilst there is no obligation upon your employer to engage in conciliation, they may be more minded to do so if the process has been concluded.

I would also flag that, if you potentially wish to bring a claim for unfair dismissal or sex/pregnancy/maternity discrimination arising out of your dismissal (if that occurs), it is important that you raise a further early conciliation within three months of the date of your dismissal. The one you raised prior to that stage would not be sufficient to also cover that potential claim. You will have three months from the date of dismissal to do so.

Settlement Agreement
I note that you are concerned that your employer may insist upon a settlement agreement. I also note that they had previously asked for an “off the record” conversation. I would flag the following points:
Your employer cannot “insist” upon a settlement agreement. It is up to you whether you wish to enter into discussions regarding a settlement agreement. You cannot be compelled to do so.
If you decide you wish to engage in that process, there is an ACAS Code of Practice which applies (link: https://www.acas.org.uk/acas-code-of-practice-settlement-agreements/html). Whilst this is not binding, it is taken into account by employment tribunals when considering relevant cases.
A settlement agreement is a legal document under which you would waive specific rights to make a claim to an employment tribunal or court. If your employer wishes for you to sign one, they should compensate you appropriately for this (i.e. you should be offered something in excess of your contractual/statutory redundancy entitlement that reflects the value of the rights to bring a tribunal claim that you are waiving)
A settlement agreement can be entered into either whilst you are still employed or after your employment has ended.
Under the Code of Practice, you should be given a reasonable period of time to consider the proposed settlement agreement. As a general rule, this would tend to be a minimum period of 10 calendar days to consider the agreement and receive advice upon it.
You are required to take independent legal advice prior to signing a settlement agreement. Whilst not mandatory, it is common practice for an employer to make a contribution towards, or cover, the cost of this advice.

Given the situation you have described, a negotiated settlement agreement may actually be a helpful way to resolve matters without the need for protracted litigation. It can currently take several years for an employment tribunal claim to be heard so often an alternative means of resolution that enables you to draw a line under matters on terms you believe to be fair may be preferable. This route would allow you the benefit of independent legal advice which would mean that you would have a solicitor who can advise you on your rights/potential remedies and can negotiate on your behalf with your employer. This may provide the best pathway towards a resolution here.

If your employer asks if you are prepared to have a “without prejudice” or “off the record” conversation, it may be worth listening to what they have to say (and what they are prepared to offer). You would be free to walk away from those discussions at any point if you decide you do not wish to go down that route. Unfortunately there are limited options for free representation for tribunal claims. You may be eligible for legal aid: https://www.gov.uk/legal-aid or you should speak to your union, if you are a member, or check whether you have any legal expenses cover on any home or car insurance.

I wish you all the best.

Dear Outwoods

Thank you for your query. I am sorry to hear that you are not having a smooth return to work.

Legal position

Under the Employment Rights Act 1996, since you are returning from Ordinary Maternity Leave (OML) (less than 26 weeks), you have the right to return to the same job on terms and conditions not less favourable than if you had not been on maternity leave. Furthermore, you are protected from suffering any detriment due to your maternity leave.

It is a question of fact as to whether the changes you have set out:

Result in you not returning to the same job. If your job description is very clear that your duties encompass line management etc, the removal of your line management duties is likely to be interpreted by a Tribunal as a change in the capacity and status of your previous role meaning you are not returning to the same job. It can effectively be viewed as a demotion. The same view can be taken regarding the reduction of your workload and responsibilities. We have assumed that you are not returning after having taken two or more consecutive periods of OML.

Are genuinely less favourable. It is likely the changes will be viewed as terms and conditions that are genuinely less favourable for the reasons set out above. Nevertheless, even if the changes to your terms are deemed less favourable, if the terms of your contract permit your employer to vary certain terms of your contract unilaterally (i.e. without your consent), you would have no right to insist on your old terms. If there is no such clause permitting unilateral changes, you will have grounds to bring a claim for pregnancy and maternity discrimination and/or unlawful detriment. If you have a written contract of employment you should check the terms carefully or seek further advice. Your union may be able to help, if you are a member.

Are detrimental to you. The term "detriment" is interpreted widely and it is likely to encompass the proposed changes suggested by your employer.

It sounds like you certainly feel like the role is not the same and is less favourable, so it is worth making that very clear.

Next steps
It is always sensible to try and work with your employer to find a way forward given that your goal is likely to be to have a good working relationship going forward.

Since you are trying to resolve this informally, we recommend:

That you set up another conversation with your line manager/relevant personnel. During the call you should emphasise:
your statutory right to return to the same job and in your view the changes are effectively a demotion and a change in your status.
your statutory right to return on terms no less favourable and that the proposed changes are genuinely less favourable to you.
your right to not suffer a detriment due to your maternity leave and that the changes are detrimental to you.
The aim here is to explain your concern and try to get them to see things from your perspective in a way that makes them recognise that they might need to revisit their current approach. You may need to consider whether to escalate matters internally to an HR team or different manager.

If your employer remains inflexible, consider raising a formal grievance to document your concerns.
Should the grievance not result in a reversal of their position, you can notify ACAS to start early conciliation, which is a required step before any tribunal claim.
While options 2 and 3 are legally your next step, both can lead to parties becoming entrenched in their position and unfortunately can be difficult to pursue without risking damaging the relationship. As such, you should consider your approach carefully.

A final flag is that it is important to speak up like you are doing and keep a record of that. You want to avoid a situation where your employer can say you agreed to the change (either expressly or by simply accepting it and staying quiet) as that could impact your ability to challenge it later.

There are strict limits in the employment tribunal for certain claims (usually 3 months, less one day, from the date of the act or last in a series of acts you are complaining about) so if matters are not resolved within 2 months of your return we suggest taking legal advice on your individual circumstances. Unfortunately there are limited options for free representation for tribunal claims. You may be eligible for legal aid: https://www.gov.uk/legal-aid or you should speak to your union, if you are a member, or check whether you have any legal expenses cover on any home or car insurance.

Dear Chocolotandtea

Thanks for your query. Your maternity pay is made up of two elements - Statutory Maternity Pay (SMP) (the legal minimum) and occupational maternity pay (OMP) and I will cover each in turn as the eligibility criteria may be different for each.
The OMP is an employment benefit provided by your employer and your employer can set their own terms and conditions for receiving OMP e.g. additional length of service requirements or return to work requirements. Any OMP your employer offers will usually be set out in their maternity policy and you should check the terms carefully. You have stated that your employer offers 6 months full pay and 3 months half pay. I assume this includes any SMP you are entitled to but your should check your contract/employer's maternity policy. This would mean that the SMP is 'topped up' to full/half pay for the relevant periods.
Statutory Maternity Pay (SMP)

You will be eligible for SMP if you meet 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 need to be employed in all or part of that week (even one day counts). You are still employed during sick leave 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 you are eligible for SMP it will be paid for at 90% of average weekly earnings for the first six weeks. The next 33 weeks are paid at a flat rate of £184.03 (April 2024 – April 2025) or 90% of average weekly earnings if that is less than the flat rate.

SMP is the legal minimum you are entitled to and your employer must calculate it and pay it as above. The rate of SMP, especially in the first 6 weeks when you are entitled to 90% of your average earnings, is worked out on the basis of your gross earnings in the 8 weeks/2 months immediately before the end of the 15th week before your baby is due. This is approximately weeks 18 - 26 of your pregnancy.

Your gross earnings will include any earnings paid by your employer that are subject to class 1 National Insurance contributions (or would be if your earnings were high enough). Case law has made it clear that there is no requirement for a payment to be “normal” in the sense of being the “usual amount”. What matters is that the payment is derived from employment and is paid in the “relevant period”.
Therefore, an employee’s earnings for SMP purposes can include any overtime payments and commission, and any bonuses, whether contractual or not, paid in the “relevant period”. By analogy, therefore, your SMP for the first 6 weeks of your maternity leave should be calculated according to the actual salary you received during the “relevant period”. Assuming you were on secondment during the relevant period, this means you are entitled to be paid 90% of your secondment salary – not the salary you would have received had you not been on secondment.

To find the relevant period:
Take the last normal pay day on or before the end of your Qualifying Week. That normal pay day is the last day of the relevant period.
Count back eight weeks from that day.
Take the last normal pay day before that date. The day after that pay day is the first day of the relevant period.

Occupational Maternity Pay (OMP)

Going back to the issue of your OMP, as mentioned above, you should check your contract and your employer’s maternity policy to see what they say about how this pay is calculated. It may state that it is calculated in the same way as SMP (which means you can apply the earnings in the period outlined above). Does it define what an employee’s “core salary” is and what constitutes “additional supplements”? I would also check your itemised pay statement to see if your “core salary” separated from the “additional supplement”? If it is unclear from your reading of your contract/any related maternity policies, how your employer calculates enhanced maternity pay, or nothing is stated, I recommend that you seek further advice on your entitlement.
Finally, I am curious as to why your secondment is ending in the same month that your maternity leave is commencing. Is this coincidental or deliberate? If it is deliberate, it is a bit concerning. I recommend, if you have not had this conversation already, that you discuss with your employer what role you will be doing when you return from maternity leave. Will you still going back to the seconded role or will you be returning to your original role. You have the right to return to your original role at the end of your 52 week statutory maternity leave, on the same terms and conditions as before, unless this is not reasonably practicable, in which case you are entitled to return to a suitable alternative job.
If your employer has not calculated your SMP wrongly, you can contact HMRC Statutory Payments Disputes Team on 0300 322 9422 to ask for a formal decision. You must contact HMRC within 6 months of the payment in dispute. HMRC will contact your employer and ask for more evidence before making a decision on the SMP you are entitled to.

If your employer does not pay the correct OMP, you may have a claim for unauthorised deduction of wages and you have 3 months from the date of the payment, or last in a series of payments, to bring a claim in an employment tribunal.

We have more information about maternity pay on the Maternity Action website here: Maternity pay questions

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

Oh crumbs I’ve only just seen this thread. I have a really quick question about shared parental leave - is it too late to submit a question?