PG and know I am being made redundant - advice please (also posted under redundancy)

[huffpuff75]

This is my first post so apols if I make a mistake.

I work for a time limited project that is making all staff redundant between now and Mar 2011. I am scheduled to be made redundant in September and just found out I am pg - due also in September. I have read loads of stuff on the internet that if they make me redundant after qual week/during mat leave I am entitled to notice pay as well as redundancy payment. I have three months notice in contract. I may be being thick here, but does this mean I get paid in full for the three months notice period even if I am on mat leave? This is obviously much better than six weeks at 90%, then SMP rate. It says that obviously employer can offset the SMP against what they are paying me. But effectively all being well, I could leave at earliest opportunity and then be paid until my termination date. Sounds too good to be true? Added complication is that the company won't exist after March 2011 so no alternative job can be offered. Help!

It's an area of law that isn't especially clear at the moment.

If you are only entitled to statutory notice, ie one week for every year worked, then you must receive it in full and SMP can be deducted from it.

If you receive more than statutory notice (which you would be if you've been there less than 12 years or so), then it's entirely reliant on your contract. What does your contract say about notice?

If your notice period is contractual, as it sounds as though yours probably is, your employer may not want to pay you full pay for the section of your notice period that you are on maternity leave. It may be sex discrimination to do that, but you might need to challenge it.

See here about notice during maternity leave. You can see it's still a bit up for debate.

Hhhm, my personal view is that, since your notice period is longer than the statutory minimun, you would receive the amount you would normally have received during the notice period (i.e. SMP) if you are 'working' your notice (even if you are on maternity leave for some of that). I don't think it's sex discrimination because they are paying you exactly what you would have received had you not been dismissed.

Also bear in mind the dates. You are due to be made redundant in September and are due in September. I'll assume that's the last day of September in both cases to make my example easy. They'd serve you notice on the 30th of June, so depending on how early you go on maternity leave, you'd actually have served most of your notice before you go off. There would then be the question over, say, the last month of your notice period. To be honest, I'd have thought in that situation that they'd just keep paying you full pay becuase the difference between 90% and 100% is not much.

If they are not going to make other people work their notice and are paying in lieu of notice instead then it's a bit different. You have the right to be treated the same as other people, and in that case I think that there is a stronger argument that it would be at full pay to avoid discrimination. However, that's usually not the most tax efficeint way to do things, so if they're looking to give people something over and above statutory redundany, they'd still be best making them work the notice period and then giving a discretionary lump sum (which you'd be entitled to just like anyone else).

Also, the entitlement to notice period and redundancy pay has nothing to do with the qualifying week of pregnancy. That is based solely on length of service. Qualifying week is relevant to whether you get SMP as well, which it sounds like you will.

Hope that helps

Hi Ribena

That does make sense, and I don't think paying whatever the woman would have received during her notice is sex discrimination either, but the link I posted earlier to EHRC and this as well, seem to suggest that an employer refusing to pay normal contractual notice pay during maternity leave might be vulnerable to a discrimination claim. Am I interpreting what they are saying incorrectly or does your personal view differ?

I think the OP is hoping to start her maternity leave as early as possible, 29 weeks, if she can receive full pay during her notice period regardless of whether she's on mat leave, so it is potentially almost all her notice that is in question.

My personal view differs and I actually don't know where EHRC got that from. The resources I use professionally don't see it as an issue and I'm not aware of a case. I'd be happy to be pointed to one though...

The directgov website just says that you are entitled to your normal notice period or pay in lieu of notice. If you are serving out the notice period, you are being given your normal notice period...

Interesting. I'm happy to go with your view - I'm certainly not aware of any cases or anything to the contrary.

huffpuff my employment law knowledge is pretty good but I'm not a lawyer. If I were your employer and you requested full pay during your notice period despite being on maternity leave, the links I found would lead me to take further legal advice. It seems, from what Ribena says, that the advice I'd get would be likely to be that it's safe to just pay what the employee would have got during maternity leave anyway.

I think in your position I'd work up to due date as far as possible anyway. You could then ask for the rest of your notice to be paid in full and see what your employer says - no harm in asking. But I wouldn't go off at 29 weeks and hope for full pay.

I don't know. Other lawyers may say different, but I've had a look around and I can't find anything to support that statement (interesting that they don't explain it either).

My reasoning would be that, if everyone works their notice, you all get paid what you would normally get paid. If you're on maternity leave, sick leave or whatever, then the special rules apply if you only have statutory notice (which will, of course, trigger in a lot of situations). The fact that there is a special rule seems to imply that the default situation is the opposite.

The reaon I would feel differently about a PILON is that that's a lump sum for doing no work. It's effectively a bit of a bonus - "here, we'll pay you for doing nothing." I think that, in that situation, a woman on maternity leave has more argument that she has been disadvantaged, as her payment for doing nothing is significantly smaller than other people's if she only gets SMP.

I'd be really interested to hear the justification for full pay if anyone else on here knows it.

OP- sorry, I missed the point about going off ASAP. For the reasons Flowery sets out, I think that that's risky unless they confirm that you'll get full pay.

Makes sense, absolutely, and I agree about the PILON.

Without having seen those links, I would have (and I think have previously iirc) carried on paying as normal for the notice period, but would now get further opinion. It's not very helpful EHRC don't actually explain why the doubt!

Thanks flowery and ribenaberry. It is confusing - I wonder if my union could help? I have a contractual three months notice period, and from what the directgov site and others say it seems that this should be paid notice. I suppose as Ribena says it is the question of whether SMP counts as paid notice. However, the advice to employers that I have read though says that SMP can be 'offset' against notice pay and Workingmums.co.uk says "You will be entitled to your notice pay on top of any SMP that you are due."
I'll keep looking for more info and see if the union can get me any clarification.

THanks for all the help !

Hi
If anyone has time to have a quick look the factsheet from working families (here) www.workingfamilies.org.uk/images/Factsheets/factsheets%20091020/RDML_for_post_Oct_08_babies091020.p df seems to suggest paid notice is a requirement even on mat leave

Huff- Where does the Directgov say that it should be paid notice? It says that you are entitled to your normal notice period. I think that there's a strong argument that that means paid at the rate you would normally be paid if not on notice (i.e. SMP). Otherwise the funny special rule about statutory notice periods doesn't make much sense.

Do let us know what your union says...