Can my employer enforce a new maternity pay repayment clause retrospectively?

[Imjustagirl222]

Trying to keep this kinda vague so I can’t be found!
currently on maternity leave, now in the unpaid portion. Due back mid may then using holidays to return mid or end June. So will have been off a year total.
company has a great mat leave - 6m full pay, then smp, then no pay. as mentioned previously I am now in the unpaid portion.

I have been offered a new job at another company, my notice is 3m so works out

checked my contract re mat leave and it says check the policy which I have a copy of when I started my leave 9 months ago - no mention of needing to repay the enhanced pay. Also checked my hr letter confirming my mat leave - says in it if you chose to not to return normal notice period applies no mention of repayment

in March of this year the policy changed and now has a repayment clause if you leave within 6m.

I know 2 people who were off at the same time as me who are not returning and not being made to repay. Can this be enforced with me as the policy changed while I was on leave? And after the enhanced pay had ended? I only found this out when j searched for the policy on the company internal pages - no one has notified me of the change. I have a copy of the old policy which was in effect when I took the leave.
or will the new repayment clause be for employees going on leave now since the clause was added?

No, they cannot do that retrospectively. They can change the policy (most companies have a small print to say policies don’t form part of your contract etc etc but they cannot ask you to repay it unless they told you before you took your leave.

That’s what I thought - I assume they realise it’s a gap in the policy and have now added it. I just wasn’t sure if they could try apply it to me!

It’s a similar concept to paying back training costs if you leave. Has to be agreed in advance.

sounds like they changed it since the last 2 decided not to come back! If you find they try to enforce this you could contact pregnant then screwed, they are very helpful with maternity rights.

They cannot apply it to you. They would have to prove that you were aware of the policy at the time of accepting the enhanced maternity pay. They cannot do that because the policy did not exist. Any attempt to make you repay would fail and I do not think they will try.

However, if any part of your 3m notice would fall into the "taking accrued annual leave" part then you may have trouble because they are not obliged to agree to you taking annual leave whenever you wish. They must either let you take it or pay you for the time in lieu in your final pay packet but they would have every right to insist that you return to work for the period between the end of the official unpaid part of ML and the end of those 3months rather than agreeing to it being annual leave, if they feel they can benefit from your time then, and if you don't return you will be AWOL and subject to disciplinary measures due to being in breach of contract.

Also, do make sure you have iron-clad childcare arrangements including flexible arrangements for emergency cover when you start the new job. Your child is likely to get every bug going if they start nursery and that is going to jeopardise the new job if you keep taking unscheduled time off for emergency childcare. Employers do have to make reasonable adjustments for you but putting up with large amounts of unplanned leave when there is workto be done goes way beyond a reasonable adjustment, and if your flexibility needs go beyond what they can agree to as a reasonable adjustment they will have no difficulty terminating your employment as a new employee.

Thank @CandyEnclosingInvisible all excellent points especially the holiday part. I’ve just checked my contract again and actually my notice is only a month, I thought it was 3 for some reason, so might work out ok! The 2 people I know of who didn’t return didn’t go back to the office at all but appreciate it will be different for each role / boss etc. I’ll just to work out the best way to navigate it!

it’s my second kid, my other is also in nursery so the youngest has had to a fair share of bugs already but yeah aware they will get everything under the sun!