Agency work and SMP?

[careyjb]

Hello,

I wonder if anyone may be able to provide some advice on SMP rights and agency work??

I have been registered with an agency since 2002 and work regularly for them. I have worked for them for the 'continous' 26 weeks period up to my 15th week before EDD except for a few weeks when they did not offer me work. I, therefore, have not turned down work from them at all. I even arranged my holiday around the contract I was currently working on so as to not turn work down.

Despite deducting tax and NI from me, they claim I am not entitled to SMP from them as I am not seen as an 'employee'. The benefits agency disagree and so does HMRC stating as long as I have worked the time scale needed and earnt over the correct threshold, I should be entitled to SMP.

HMRC have said I could open a 'dispute' case, however, I understand this can take a long time. I am also worried that if I open a dispute, will the agency regard me negatively when I want to go back to work and maybe not offer me so much work? Before I went on Maternity Leave, I was earning approx £400 a week from them.
Another agency I work for has no problem paying me the SMP I am entitled to, however it is not enough to live on as the job was part-time and because they are paying up I am not entitled to MA which is far more!

Has anyone else had any experience of such a situation and may I ask the outcome?

i worked for a nusring agency through my last pregnancy and got SMP.

I believe you are entitled to it, as well as holiday pay etc. As an agency worker you are entlted to very similar rights as an employee. Perhaps the agency are just trying it on. Let them know what the benefits agency and HMRC have said and see what happens, letting them know that they have advised you to open a dispute case, which would be well worth doing even if it does take a while as you would be getting back payments.

Thanks Forevercleaning.

I would prefer to go down the 'nice' road and perhaps initally just advise them what HMRC have said to see if this jogs them along before I open a dispute. It annoys me, that I am paying tax and NI through them and that the agency can claim most, if not all, of the SMP back from HMRC so they are hardly losing out!
I assume they just don't want the aggro because I think they have got away with this with other staff and no one has kicked up a fuss..........yet! It's a lot of money to miss out on and more importantly, is the difference between returning back to work 2 weeks after the birth or having at least 3 months off with my newborn!

I think it is a typical agency thing to try!

You are right to pass on your advice to your agency from the HMRC etc in a gentle way, as you say you will need to have the work from them again when you have had your little one.

Not a nice way to start maternity leave though with all that stress. I hope they give you what you deserve.

careyjb yes you should get SMP as long as you meet the criteria. Have a look at the workingfamilies website. The page I've linked to is their list of factsheets. Scroll down, there is one called 'Atypical workers and Maternity Rights', aimed at people like you. Might be useful and you could show it to your agency - it might be a bit more 'fluffy' than HMRC if you want to try and be nice first.

Hope you get it sorted.

Hi Flowerybeanbag,

Thankyou very much for the info. Very helpful! I shall def give that a go

Many thanks.

careyjb - you need to check the terms and conditions that the agency have got you on. There are a variety of versions that could apply, especially as you say you are working via another agency. Depending on the form of contract you have, the basis of continuous employment (which is what HMRC etc is using) can make a dramatic difference to your entitlement.

I would want an employment lawyer on this, as you are moving into territory that has not yet been 100% sorted through precedent in the courts. there have been a variety of cases where the agency and client have been identified as "employers" with employees rather than "workers" etc, but these have never been (IMHE) in relation to benefits such as maternity. The HMRC and Benefits Agency are not able to determine your employment status as this has yet not been sorted out in court.

I worked as a consultant on a temp desk for a long while. We had a young lady who was with me for more than a year, claimed SMP, and we paid it. The goodwill was worth more to us in keeping her other 40 colleagues believing in and trusting us, as well as ensuring that she came back eventually, than the paltry amount it cost us each week.

Hope you get this sorted out.