Employer trying to screw me - help/advice please?

[newmomma]

Hi,

I am currently at the end of maternity leave with DS1. It finished on 4th January 2010 (52 weeks) so I am in the paid annual/public holiday part of my final leave.

At the end of the period (28 working days of FULL 5-day-a-week holiday PAY) I am then starting early maternity leave (at 29 weeks)for DD (due in May 2010).

One of the main reasons for taking early maternity leave with this baby is because we really struggled to take on my maternity leave cover (who is doing three days a week as this was to be the hours I would do upon my return). By taking early leave we (me and my employer) both agreed it would mean less upheaval for both parties than me returning for a short period and then risk losing my cover. This way they have kept her on for the whole period, straight through.

I have just received an email from my cover saying that they will pay the accrued annual and public holiday this year based on my pre-maternity leave contract of five days a week, but the holiday pay at the end of the next set of maternity leave will be based on my three day a week role.

I have no contract yet stating that I am going to do three days a week when I return but it has been verbally agreed. Plus my cover has been doing three days a week in the meantime and an additional office assistant was taken on to take up the slack. So it has definitely been agreed that I will return three days as week.

As I haven't returned to work yet (and won't do until after this second set of maternity leave) can they force me to take the holiday accrued over the second set of maternity leave at the part-time rate.

ie they will only pay me 3/5 of 28 days rather than the full 28 days.

Also I am contracted to earn a % of profit share - none of which has been paid to me whilst on mat leave - I am assuming I could ask them to pay this to me if they're going to start playing games? Am I still due this while on mat leave?

It is a small family run company with no formal maternity policy. They didn't pay me any mat pay over or above the government statutory - which by boss had always said verbally they would find some way to help me out - they never did but I haven't hassled them about this either.

Hope this makes sense...
Please please I hope someone out there can give me some advice?
Thanks

Right, well this all depends on what the scenario is. Either it's:

1. You are a full time employee, 'returning' (even if only nominally) from maternity leave as a full time employee then immediately going on maternity leave again; or

1. You have agreed part time hours which are to be implemented immediately at the end of your annual leave.

If it's scenario two then your maternity pay and holiday will be based on a three day week, not a five day one. Although I haven't done the maths, I assume that your SMP would be very low this time round anyway since you would have earned very little between weeks 18 and 25 of your second pregnancy.

I think you need to think very carefully about the chronology and what you agreed with your employer. It sounds rather as if you have agreed the part time from now, not from a year's time (or whenever), in which case what they are doing is normal. If you think you agreed that it would be implemented in a year's time, then you are correct that they should be doing everything on five days.

The profit share is a slightly tricky one. It sounds like it is specifically a contractual bonus (either verbally or in writing), in which case it is normally payable, but pro rated for periods you are absent (other than the two weeks of mandatory maternity leave). Discretionary bonuses are treated differently, so come back if it's discretionary.

What Ribena said. If you won't actually be working 3 days a week for another year or whatever it is, you need to make sure your contractual hours change at that point, and not before. You haven't had anything in writing confirming your new hours yet anyway, so you could ask for written confirmation of your new hours commencing when you return from your second maternity leave on x date.

That way you will ensure that your existing full time contract remains in place until you actually start working less hours, and your holiday will continue to accrue on the basis of that.

As an aside, I would actually not be inclined to commit to anything definite in terms of changes of hours following your second maternity leave. It's an awful long time until it will actually happen and I'd personally probably be inclined to say that although you currently think you may wish to reduce your hours on return from your second maternity leave, you think it is sensible not to commit either party to anything firm so early on, and will write to them at a later date after your baby is born confirming your request.

Again that will mean your existing terms and conditions stay in place throughout maternity leave, although obviously there is a small risk that they could change their mind in the mean time about the 3 day week.

What Ribena said about the bonus.

Is the profit share a 'Benefit ' ?

They cant take away or adjust any benefits previously agreed on contract before Maternity leave.... as I believe.....

Joanne, you are right about benefits, but there are special rules for anything that is considered pay. So, just like your salary stopping and being replaced by SMP, so certain contractual bonuses would not accrue during maternity leave. That's why you get it, but pro rata.

Thanks peeps.

The profit share is part of my salary set-up (basic plus % of the company net profit paid quarterly) - as I said there is no formal contract regarding maternity leave and my employment contract itself is very basic.

Everything agreed regarding 'returning to work' has been agreed verbally. It was always said 'when I come back it will be three day a week'.

Surely as I haven't come back my contract at 5 days still stands.

It must do because they're not quibbling the holiday pay this time round - it's at the end of my next maternity leave they're going to pro-rata the holiday.

Now surely if I haven't been deemed to 'return' after this ML (still being paid accrued holiday at FT rate) then why can I have been deemed to have returned after the 2ns ML when the circumstances will be identical?

Not sure about the 18-25 weeks rule people have been mentioning... I spoke to ACAS who mentioned an earnings limit but said that SMP was above that limit so I'd be ok and would have no problems with SMP a second time round?

Well, if you've agreed that it would be "when you come back" then that suggests you agreed it would be after the second maternity leave (assuming that they were aware of the second leave when you had the discussion).

The holiday this time isn't relevant though. You went on ML as a full time employee and accrued holiday whilst off as a full time employee. That is why you get the full holiday this time. You then returned to work full time (albeit on holiday). The question is then whether immediately before you go off the second time you went to three days (in which case you acrrue 3/5 holiday this time) or whether you went off again as a full time employee (but with an agreement to return 3 days in the future) - in which case you accrue holiday in ML2 at full rates.

Either way, you have returned after this maternity leave for official purposes. You can't be on holiday and ML.

On the SMP, were ACAS aware that you were not actually receiving pay during the reference period? SMP is calculated on money actually received, not the salary in your contract, so I do think that your SMP will be affected, unfortunately.

You have technically 'returned' from maternity leave if you are taking holiday, you are just not in the office. However 'when you come back' does suggest on return from the second maternity leave. You need to get your change of hours confirmed in writing with an actual effective date so that there is no room for confusion or ambiguity.

I wouldn't rely on ACAS for employment law advice tbh, I've seen way too many people on here and elsewhere being given incorrect advice. As Ribena says, the fact that SMP is above the earnings limit is irrelevant if you were not receiving it during weeks 18-25 of your pregnancy.

My ex-employer apparently relied on ACAS for employment law advice when he decided to unfairly dismiss me (too tight to pay for proper advice )

he came out with the most BIZARRE statements which he claimed were "according to advice from ACAS" - my solicitor nearly wet himself laughing!
eg apparently it is OK for a temp who was eventually given my job to chair the appeal hearing and make the decision on whether or not to uphold the decision to dismiss!

Anyway, I digress!

In summary, ACAS advisors wouldn't know good employment law advice if it jumped up and bit them.

That's a bit unfair. Some are great. Some are rubbish.

Also, employers have been known to say "ACAS said" to try and fob people off, when ACAS said no such thing!

at your employer Yorkshire .

You could be right, Ribena. My ex-employer is very capable of coming out with utter lies when it suits him.

It just made me laugh that he expected me to be impressed by him saying "ACAS say this is right" as if they are staffed by high court judges!

I think the point is, it is dangerous to put too much reliance on ACAS advisors, they are no substitute for a good solicitor.

It's got worse...
I went in yesterday to try and discuss things face to face, amicably, with my boss.

He started getting very irate, said I was annoying him, threw facts at me like 'you apologised when you told me you were pregnant' and 'you said thank you for me being so understanding'. He's been taking notes of dates things happened for months...? Conversations we've had etc.

He then went on to say that he didn't have to honour my commission structure because we'd verbally agreed it and he would pay me on the part that is included in my old contract (the loss making part) and if I forced the issue he could certainly 'show' me accounts that show the other part of the company wasn't making any money either. Implying he'd just fiddle the management accounts. I said that he'd been paying me commission on BOTH companies before I left so surely if an arbitrator were to look at the 'real' situation rather than my old contract they'd see he's obviously been paying me both? I didn't hold a gun to his head for every quarter for several years to get him to pay it to me...

He said that I'd not told him when I was returning to work (before discovering I was pregnant for the 2nd time). I had contacted the admin dept and told them - he never phoned me himself. And that when I'd contacted the payroll bureau to ensure they knew of my start date that I was acting fraudulently rather than sensibly?

I then told them all (work and payroll bureau) in PLENTY of time not to pay me as my maternity leave would be extended for the full 52 weeks (due to trying to take 2nd leave back-to-back) and they paid me anyway. He's implying it was my fault? They'll just falsify payroll input details if it comes to it. I paid the money back THE SAME day they incorrectly paid it to me - does that sound like I was trying to nick money off them? I said that it should prove to him that I had every intention of returning to work, rather than falling pregnant again to try and 'shaft him' (his words)!

He called me petty for hassling him over 12 days holiday. If he deemed it NOT petty enough to NOT want to pay it (they're a company with a lot more money than me) why is it petty for me to want it paid? So I said fine I understand the holiday is a grey area - but then commission is due and he got so irate he said I should leave.

He said he was going to say something he'd regret and that any further communication between us would be in writing. That he'd write to me before the end of the week.

I don't know if he's decided that he just doesn't want me around any more (after 7 years of very loyal and respected and appreciated service - they told me I was one of the two best accountants they'd ever had since they'd been going since the 50's) or if my maternity cover is trying to screw me over to get my job. He tried to blame the whole idea on her! I said that it may very have been her idea to mention the 3 days holiday but he'd approved it.

Basically it's a boys club (motor-trade) and I have fought for years to make my face fit. And I had. It seems that having a baby (or two) has just reminded them that I don't have testicles.

He kept cutting me dead with 'whatever' and 'yeah, well'... It was like trying to talk to a teenager.
I have never been spoken to like that before - I cannot believe a very good friendly working relationship like this has turned so sour so quickly. THEY contacted me regarding an issue which was basically up for debate, in the absence of no written confirmation) so I went in to talk to him about it maturely. And he's making out like I'm the one who's stirring and that I'm being petty and have disappointed him.

What upsets me the most is that this was never meant to turn out like this - he always said that in the absence of a formal mat policy that the company would support me financially on top of the SMP - this never happened and I never forced the issue. I mentioned it a few times before going off on leave but he'd side step the issue. Now he's completely ever forgotten mentioning it and said I'd invented it.

He's making out that my decision to take back to back maternity leave was purely selfish. He rolled his eyes when I tried to explain that actually I'd have been financially much better off if I'd gone into work for 4-6 months before going back on leave and that it would be less stressful for them trying to find another replacement (or run the risk of losing the current girl) or me going off on leave so soon without them having sorted a replacement again was purely selfish also?!? It took approx 6 months to find someone who was happy to do the role last time.

Anyway - I guess I'll just have to wait and see what his letter says when it comes. I just don't see why I've gone from the golden girl to someone he's trying to oust. I just had a baby - I didn't break the law.

Unbelievable.

Well that all sounds very bizarre I must say. I assume you were just confirming to him that your request to reduce to 3 days was to commence at the end of your second maternity leave and asking for written confirmation of that? That's not a 'grey area' anyway; you want to reduce your hours, and if you don't want to do so until you return from your second maternity leave that's your decision, there's no 'grey area' about it. That's for you to tell him, not to discuss or negotiate. That's why earlier I said you should put in writing that you are requesting new hours to start on x date.

Where on earth did all the rest of this come from? Sounds like he's really p*^%ed off that you are going to be off so long and not making any attempt to hide it at all.

What do you want to do about it? I'd make sure you write down everything he said as a starting point, just so you remember it all should you want to raise it again.

Oh newmomma, I feel for you. I also had the boss who turned from a pussy cat into a bear.

Sadly, the reality is that even the seemingly nice and reasonable employer who praises you to the skies can turn on you if it suits them. I learned the hard way that you cannot rely on trust and informal agreements in employment as, if the situation changes, your employer will use whatever they can to get rid of you if it suits them.

I think your two maternity leaves have probably turned them against you as, rightly or wrongly, now you are a mum he sees you as less reliable. It sounds like he is angling to keep the maternity cover on as he sees them as a les "complicated" option (are they childless by any chance, or male?)

You must now start putting yourself first and start being as ruthless as your boss. You owe this man nothing, he is treating you disgracefully. Make no mistake, he will lie and fabricate whatever he needs to in order to get what he wants.

Remember that contracts do not have to be in writing and can be established by showing usual practice (ie if soemthing is done a certain way and is not challenged it becomes an accepted contract).

Stop being so accomodating over your maternity leave. Insist on exercising your rights. If you would be better off returning from your maternity leave and working for a few months before going on second maternity leave, then do it.

Above all, get some legal advice. It is very likely that your employer will throw whatever he can at you to get rid of you and you need to know your rights.

Good luck, I think things may get difficult for you but it WILL get better. Just remember to put yourself and your family first, do whatever you need to do to protect your interests and do NOT trust your employer on anything - get everything in writing/ record all coversations.

Thanks ladies.

That was my response - where on earth has all the aggressive behaviour come from??

Am just sitting down now to try and rememebr what was said - but its so hard when I was shaking at the time and trying not to cry - I keep remembering snippets but am struggling with the chronology of it all...

My cover is a woman but has finished having children. I have to say that I think there might be a certain element of her wanting my job (local, well paid, relaxed atmosphere (supposedly))... So she may well be doing some bad mouthing I suppose.

Like you say - he's gone from being someone I would consider a friend (and boss) to turning on me. I can only assume that its due to the maternity leave, but surely thats not legal. Have been reading up on constructive dismissal and sex discrimination (regarding changing contracts while pregnant - ie his comment saying he wouldn't be paying me commission he previously had). I don't think he's got a leg to stand on so I'll get my side down on paper and then nervously await his letter.

Just what I don't need at 25 weeks pregnant. I hardly slept last night. Not sure if it was nightmares or lying awake stressing about the whole thing but i'm shattered today.

I really appreciate your swift responses and will let you know the minute I get any communication from him.

Oh Newmomma, you poor thing.

No, it is NOT legal but sadly that does not stop some employers from trying it on as they hope you will just cave in and not fight them

Also, some employers do not know much about the law and assume that they can do exactly as they please. It sounds as if you have a very good case which will not be difficult to prove at a tribunal if it goes that far. Frankly, to try this on with a woman about to go on maternity leave is madness as he is open to unlimited damages for sex discrimination. when he finally gets around to taking legal advice he will be advised to settle with you FAST.

I'm so sorry you are going through this, especially during your pregnancy, you just don't need it. I remember well the sleepless nights and loss of appetite and sheer feeling of being hit by a train, and i was not pregnant. It is horrible but it is due to shock and it WILL pass, you will calm down and find the resolve you need to fight.

I would suggest that you speak to your GP or midwife about the effects the stress is having on you and see what they can do to help. I am not sure what you can take in pregnancy, but I found that a short course of anti-depressants and sleeping tablets helped get me back on an even keel.

Get some legal advice as well as this will make you feel happier that you are not alone in this and that your employer can be held to account for his behaviour. If you have family legal protection on your house insurance this often has a helpline you can call for initial advice and usually covers legal gees for employment issues.

Stay strong and do let us know how things go - just unload whenever you need to.

Thanks YorkshireRose

I will just keep calm and try and stop stressing about it. Life is too short - but then if he pushes me I'm not going to just sit back and take it.

He's onto a losing battle, so he's a fool - I don't want to get into tribunals and horrid things, especially with a baby on the way - but he'll leave me no choice.

I won't be treated like this.

Its nice to know I have some support on here and people to bounce off. It's very easy to think you must be in the wrong when someone's treating you like this.

I know what you mean, newmomma. You begin to doubt yourself when your employer behaves so unreasonably out of the blue.

Just remember YOU HAVE DONE NOTHING WRONG!

Glad to see you are getting angry - thats a really good sign, you have every right to be furious at being treated like this.

Anyway, have a chat with a legal bod, outline the story so far and get some advice about where to go from here. That way you are prepared for whatever this idiot man tries to throw at you.

Keep your chin up and keep in touch.

We are all rooting for you!

Well a colleague contacted me yesterday telling me a couple of interesting points...

1. The supposedly fraudulent contact with the payroll bureau was complete crap - they made a cock up that month and SEVERAL employees got paid who shouldn't have.

1. He has said that he has absolutely no idea why I was being so petty over a 'few' days holiday and had 'put it down to my pregnant hormones'!!! He has no intentions of writing to me supposedly and is going to give ME a few weeks to calm down before any more contact.

I have written my statement of the conversation we had (took most of a day!) and have noted these little updates on the bottom.

I could post it on here but it's massive!

If he has no intention of writing to you I really think you should write to him.

I'd ignore all his ranting and just write a very basic straightforward letter saying something like 'following our conversation on x date, I am writing to confirm that as I am not due back to work until x date, my agreed reduced hours will not commence until that date. As you are aware, this means I will continue to accrue holiday until that date at my existing rate.'

he has obviously realised he has way overstepped the mark and is hoing that it will all go away if he ignores you.

Definitely do as flowery suggests, you need to take control of this situation and tell your boss exactly what you find acceptable and what you do not. It sounds as if he will probably be sensible if you show you won't let him push you around.

In the light of his latest actions i think he is probably not trying to get rid of you. However, you need to think long and hard about whether or not you want to carry on working for this idiot.

Right - having not received anything in writing from my boss I have decided to put something in an email to him as some of you have suggested.

I want to keep it short and to the point so, here goes:

"Hi ,

I hope you are well.

Further to our recent meeting, I am concerned that I have yet to receive
the letter you mentioned. Please email a copy of this correspondence.

As I outlined in our meeting, my contract remains unchanged since I started my maternity leave. In view of this, I believe that:

1. I am entitled to 20 days accrued holiday per year;
2. I should be paid profit share on separate calculations for A and B, in line with previous payments.

I would appreciate confirmation of the above.

I was deeply upset by your comments in our meeting, and the implication that my pregnancy has been detrimental to 'The Company' and was based on personal gain.

I believe that we have always had a good working relationship and feel a personal attachment to 'The Company'. It was with this in mind, that I notified you of my second pregnancy ahead of the legally required date, allowing you to retain the existing maternity cover. By taking extended and then early maternity leave I have minimised the financial burden on 'The Company', while leaving myself without an income for three months.

In order that I can feel comfortable in returning to work at the end of my maternity leave I hope that we can resolve this correctly and amicably and put any differences behind us.

Thanks and Regards"

What do you think? Is it enough? Too blunt/not blunt enough? Advice gratefully received.

I do think the 'contract unchanged' might still be a bit vague. I would go with something along the lines of my post of Fri 22-Jan-10 12:38:18, pointing out specifically that your terms and conditions (including your hours) have remained unchanged, and will not change until your return date of x.

Thanks flowerybeanbag, you're right.
How about now?

Hi *,

I hope you are well.

Further to our recent meeting, I am concerned that I have yet to receive
the letter you mentioned. Please email me a copy of this correspondence.

As I outlined in our conversation on the 19th January 2010 I am writing
to confirm that;

1. As I am not due back to work until 24th November 2010 at the earliest
   (39 weeks leave) or 23rd February 2011 (52 weeks leave), my agreed
   reduced hours will not commence until that date. As you are aware, this
   means I will continue to accrue holiday until that date at my existing
   rate of 20 days per annum,

2. I will be paid profit share on separate calculations for A and B, in line with previous payments.

I would appreciate confirmation of the above.

I was deeply upset by your comments in our meeting, and the implication
that my pregnancy has been purposefully detrimental to and was
based on personal gain.

I believe that we have always had a good working relationship and feel a
personal attachment to . It was with this in mind, that I
notified you of my second pregnancy ahead of the legally required date,
allowing you to retain the existing maternity cover. By taking extended
and then early maternity leave I have minimised the financial burden on
*, while leaving myself without an income for three months.

In order that I can feel comfortable in returning to work at the end of
my maternity leave I hope that we can resolve this correctly and amicably
and put any differences behind us.

Thanks and Regards

Ok...
In response to the email my boss phoned and
asked if I was lodging a formal grievance and that it read like a very formal email - he wasn't sure how to take it.

He said that he thought the issue of the commission wasn't one that I was going to hassle him about so he didn't think they'd have to pay it.

Then he went on to say (an hours conversation summarised into one sentence) that he would 'honour' the 28 days holiday this time round if I didn't pursue the commission issue.

And that if I did pursue the commission that it would cause 'bad feeling' and change his feeling towards our business relationship.

He was VERY vague and after me asking several times if he could spell it out in black and white I asked if he could please reply to me in an email so that I could read it over and try and get the jist of what he was saying.

He said that he wouldn't do that because it could be used against him.

He wants an answer in two days as to whether I drop the commission issue or not. He says that he's going oh holiday and if I text him he'll call me straight back - it seems like he won't put anything in writing(!). He basically said that he'd pay the commission if I forced the issue but it would change our relationship?

How can I go back and work for someone like that?? I'm just asking for is due!

Advice?

It all sounds very strange. He didn't think he'd have to pay you any commission because he didn't think you'd hassle him about it? So it's not that he thinks you're not entitled, just that he hoped not to have to pay you anyway? And now he thinks he's doing you a favour by honouring your holiday entitlement but blackmailing you into doing so? It sounds as though he knows he's on dodgy ground by his refusal to put anything he's saying in writing. If he genuinely didn't think you were entitled to any of this he'd be happy to say so in writing and explain why. If he thinks it could be used against him then he knows it's wrong.

I think the first thing you should do is put your conversation with him in writing yourself. I would send him an email, just confirming what was said. I think your relationship is already changed so I wouldn't be overly concerned about that. He is right that what he's said could be used against him, so you need to record it in writing yourself in case you need to do so.

I would advise you send him this factsheet which very clearly outlines the rights a woman has during her maternity leave. I would say in the email that you haven't raised a formal grievance yet and hope not to have to do so, however obviously if he refuses to give you the rights you are entitled to during your maternity leave, you will be left with no option but to do so.

You will see from the factsheet that it goes into some detail about bonuses, and as Ribena said earlier, as yours sounds contractual, part of your normal remuneration, you'd be entitled to a proportion of it based on when you were at work and also including the first two weeks of each maternity leave.