Career break and maternity leave, advice needed.....

[mammajamma]

I'm currently on a career break until the end of March 09. I am pregnant again and will be able to start my maternity leave just as my career break ends. I am having some problems understanding my maternity pay entitlements.

The company career break policy says that you continue to have entitlement to all benefits such as maternity, holidays, staff disc, etc but now that i have told them that i am pregnant HR are saying that i will not be entitled to company pay only maternity allowance.
My career break contract stats that my break is classed as continuos service and also that i will continue to accrue all benefits. Also in the maternity policy it says that you are entitled to company pay if you have 26 weeks continuos service. I'm so confused!! it seems to say one thing and mean another!!
I feel that the working is misleading in the policies set out by my company and my career break contract and wondered if there was any way to challenge this?

My partner has just been made redundant so we desperately need my maternity pay!!

Are there any employment lawyers or HR experts that would offer me any advice?
thanks xxx

Think HR is confused! (And maternity allowance wouldn't be applicable as you would get SMP anyway!)

Have you asked them for an explanation?

But is the amount of maternity pay you will receive at the qualifying weeks for calculations enough to get you smp again? Is there an enhanced pay policy (is that what you mean by company pay ?) as perhaps that element could be discretionary.

I would imagine you wouldn't qualify for SMP if you hadn't been earning in the qualifying weeks...hope I'm wrong though!

From dwp website
"Can I get it?
To get SMP you must have been:

Employed by your employer into the qualifying week which is the 15th week before the week your baby is due; and
Employed by the same employer continuously (some breaks do not interrupt continuity) for at least 26 weeks into the 15th week before the week your baby is due. Part weeks count as full weeks, and
Earning before tax an average of £87.00 a week for tax year 2007/8 and £90.00 a week in 2008/9. This is called the Lower Earnings Limit for National Insurance Contributions (NI) and is the amount you have to earn to qualify for benefits. You have to earn more than this amount before you actually start paying NI.
If you are employed you can read more about how long you must work for your employer and how to work out your average earnings in leaflet NI 17A ? A guide to Maternity Benefits. "

You are entitled to the full company maternity pay. SMP - statutory maternity pay is for when an employee hasn't reached the threshold of continuous employment or a few other reaasons.

A career break does not affect your continuous employment, and should state that you need to tell the company if you get pregnant (or convicted of a criminal offence!)

The only thing one isn't entitled to on a career break is renumeration.

Effectively what they have done is put your contract of employment on the pause button

i thanks for your responses, this is the answer that i got from my HR department when i asked what my entitlements were:

"You will always be entitled to take 52 weeks leave however your entitlement to pay is calculated on your average earnings based on the 2 pay dates prior to the 15th week before your EDOC. So, if those 2 pay dates fall while you're still on special leave then you will have to claim SMP back from the state. If you're back at work and your average salary is calculated as being above the lower earnings limit which is £90 per week then you will receive 14 weeks company pay and 25 further weeks SMP through the company payroll."

But this doesn't make sense to me as the policies state the following:

THIS IS THE FROM THE SPECIAL LEAVE(CAREER BREAK) POLICY:
"Employment will be regarded as continuous for the purposes of this leave and benefits."

THIS IS FROM THE MATERNITY POLICY: (the bit about pay)
2.4 Maternity Pay

2.4.1 Eligibility

There are two forms of maternity pay: Statutory Maternity Pay (SMP) and Company Maternity Pay.

To qualify for SMP the employee must have been employed continuously by the company for 26 weeks by the end of the 15th week before the week the baby is due (EWC) and been paid at or above the Lower Earnings Limit (see Glossary).
If the employee is not eligible for SMP, she will be given access to an SMP1 Form to apply for Maternity Allowance via her local JobCentre Plus.

2.4.3 Company Maternity Pay

Employees eligible for SMP will also be eligible for Company Maternity Pay, which provides:

First 14 weeks the higher of full basic pay (excluding any premium payments) or 90% of average earnings. This includes SMP;
25 weeks SMP paid at the lower of 90% of average earnings or the weekly flat rate (£117.18 from 06 April 2008).

MY CONFIRMATION LETTER FOR MY SPECIAL LEAVE SAYS:
"You will remain an employee throughout the period of your special leave, but you will not be entitled to receive any salary.

Service throughout the leave will be continuous and benefits will continue to accrue."

I am confused because it doesn't say anywhere that you will not be entitled to company maternity pay if you are on special leave. Maybe i'm just being thick but i think the wording is a little bit ambiguous. Do you think i can challenge them and hopefully get a positive outcome?

sorry for the long post!!!

If you have no salary durng your career break then surely you are below the earnings threshold, regardless of your continous service etc, and therefore cannot get smp. My readign of it is that if they were to choose to pay you they could not reclaim anything from the state and therefore they are suggesting you apply for ma instead.

It reads to me that in theory you have full entitlement to benefits, but that when that is calculated on your earnings the amount you are entitled to is technically £0.

Have the specifically said what they are proposing to pay you, what you have posted from them all looks pretty general.

sorry, mistyped

Have they specifically said what they are proposing to pay you, what you have posted from them all looks pretty general?

I looks like thier career break policy isnt written as clearly as it could be, hope that you get a satisfactory outcome to this.

"benefits " usually refers to things like your staff discount, continuous service for membership of pension scheme, any increase in holiday entitlements due to service, discounts, company car or payments in lieu etc and suspect reference to maternity is only being entitled to return to your job or equivalent and on same t and c's rather than financially.

I read the policies as follows

1. if you qualify for SMP you also get company maternity pay

1. You won't qualify for SMP as you will have no earnings in the qualifying period (the 8 wk period ending 15wks before EWC) therefore you won't get company mat pay, sorry

You should be able to claim MA from DWP £100&something pounds a week for 39wks

What Betsy said. If you are not earning during the qualifying period you are not entitled to SMP, and it specifically says that the enhanced pay is only available to employees who are entitled to SMP, which you are not.

Service remains continuous, and you will be entitled to benefits, like holiday, but you aren't entitled to any pay.

You will be able to claim maternity allowance.

Wow - did I get that one wrong!

Seems odd though that a career break, would have such damaging consequences.

You are entitled to holiday pay though. Any outstanding for 2008 that they might carry over or perhaps take it as payment in lieu?

Well in terms of employment rights, continuous service, benefits and all other entitlements, the career break has had no damaging consequences. It's just that maternity pay is calculated based on earnings during a specific period of pregnancy, and the employer has decided to base their enhanced pay on the same criteria.

It's irritating, and obviously will have financial implications that mammajamma wasn't expecting, but the policy is fairly clear, and it's an understandable business decision. If the employer have someone on a long career break, have employed someone else to cover or made other arrangements, and then suddenly have to cough up maternity pay they can't claim back from the government or anything else, that's a big hit, and may impact on their decision to either offer career breaks at all, or to offer enhanced maternity pay.

You are entitled to holiday though mammajamma. You will continue to accrue holiday throughout your maternity leave and can either be paid it if you leave employment, or take it, probably tacked on to the end of your maternity leave.

What Flowery said (sorry OP)

thanks so much for all of your responses.
I get it now, think my baby brain was affecting my ability to understand the policies. I am owed 4 weeks hols from 07/08 which they have said they will pay me for so at least that is something.

Thanks again, you've all been great!! xxx