Childcare vouchers and smp - can they do this to 'recoup' the money

[nomorelostweekends]

I have been in protracted discussions with my employer, an NHS Trust, regarding the payment of childcare vouchers whilst in receipt of SMP. I stayed in the scheme whilst on maternity leave, and during October and November last year was only in receipt of SMP (I returned officially in December). The trust initially deducted the vouchers from the SMP, despite clear guidance that they can't do this and despite me drawing it to their attention earlier in the pregnancy.

When I approached them about this, they proposed that they would give me the remaining SMP but recoup the vouchers whilst they decided how they would respond as a trust to the change in the law(apparently I was the first, and remain the only person who has attempted to claim vouchers whilst on SMP). At the time I desperately needed the cash, so I agreed they could take the 2 months worth of vouchers back and pay me the outstanding SMP. This was in December last year.

I have been trying since this time to get them to tell me whether they intend to pay the vouchers back to me. Today i was told that they would do. However only on one condition. Apparently during this process they have 'realised' that they calculated my (and everyone's) maternity pay on my salary before the deduction for vouchers had been made. They actually told me this whilst on maternity leave but made no suggestion that they planned to change this. Today they have said that if they pay me the two months vouchers then they will recalculate my maternity pay based on my salary minus the vouchers, and recoup this sum, thus cancelling out the payment (and possibly leaving me having to pay more back to them).

Can they do this? If they recalculate my maternity pay using the new figures, do they not need to do this to everyone else who has received vouchers in the same time period, thus ensuring we are treated equally(albeit not particuarly fairly, and i don't want other people to lose out because of this)? Or can they single me out and do a post hoc change in the way my maternity pay was calculated as i tried to claim the vouchers?

Hope i have written that clearly enough. Any advice really appreciated.

I wouldn't describe this as a change in the law. It's been a legal requirement for employers to continue to provide benefits throughout maternity leave for some time. I'm sure the rule about not deducting salary sacrifice payments from SMP isn't new either.

If they calculated your maternity pay wrongly they will need to adjust it, as the SMP they can claim back from the government will be the 'correct' amount, not the incorrect amount they calculated initially.

I'm not sure how or why there would be a huge financial impact on you anyway tbh. I don't know what mat pay in the NHS is, but I would guess you spend some time on perhaps full pay, maybe some time on half pay, then SMP? The definition of full pay and half pay would remain the same, so any time you spent on full pay or half pay or whatever you get won't be recouped from you anyway, as the Trust tops up SMP to the appropriate amount. It just means the amount of the top up provided by them will be larger than they intially thought.

The only difference will be in the amount of SMP, so assuming you get paid more than the basic rate of SMP anyway, there would be no financial impact on you as the only time your earnings make a difference for calculation of SMP is the first 6 weeks. If you spent that time on full or half pay anyway then the fact that the SMP element of that is slightly less than previously expected should make no difference. Or am I misunderstanding you?

Yes if they are going to recalculate your maternity pay correctly, they should do it for anyone else in the same position, and I expect they are doing so. No one will lose out as those people will get their vouchers.

Thanks for replying. I am a little confused I admit! I maybe didn't explain myself very well. I presumed if they recalculated my maternity pay using my monthly wage minus £243 (the amount of childcare vouchers) then i would be worse off than if they included the voucher value in the calculation (which they did). I thought this was the reason that people came out the scheme - so that their mat pay was based on 'full' pay. I stayed in because i continued to need childcare, and i had read that once i was on AML then the vouchers would be paid by my employer. I admit at this time I didn't know that the trust included the voucher value in their calculations, but did know that this was often the case in other trusts (through colleagues)

I guess the other bit I am confused by is whether they 'chose' to calculate my maternity pay this way, and indeed they told me that it had been done like this back in December with no suggestion at all that they would attempt to recalculate it and treat it as an overpayment. I took this to mean that they would leave it as it was. I understand that they can and should take overpayments back, so for example when i returned they initially paid me for too many hours, which of course they wrote to me about and we agreed a plan for them to recoup. But i am not sure its an overpayment - rather the trust has realised there is another way they could have done it. Does that make sense? I might be wrong and they might have to do it this way legally - but if so why are they giving me the choice of taking the vouchers and having my pay recalculated, or leaving my pay is it was.

I know 2 months childcare vouchers isn't a huge amount of money to make a fuss over. Although maternity pay in the NHS is relatively good, with 2 children in childcare we have still barely managed to scrape through. Having the vouchers would help immensely, although i think it might be time to leave it be. I think i am still quite cross that it took a huge amount of effort to get them to acknowledge that they could not make a deduction on my SMP, and that despite telling them the first month they did it again the second.

Thanks again

People who only receive SMP often come out of the scheme for those reasons. But if you only have two months of only SMP and those two months are at basic rate anyway, the rate of pay SMP is calculated on will make no difference. SMP basic rate is £120-odd regardless of your salary unless you earn less than that in the first place.

So I can't see that there's been any overpayment to deduct. Which is why when they told you that they'd calculated your SMP wrong before they didn't do anything about it. They didn't need to. If your policy is, say, full pay for 6 weeks then half pay for another 6 weeks or whatever it is, the calculation of SMP makes no difference to you.

If you had a period at the beginning on full pay, you should have just continued to be paid salary as normal, with childcare deductions being taken as normal. You should have noticed no difference. Your employer calculates your SMP and claims that portion of your 'full pay' period back from the government, but in terms of how much money you get, it makes no difference.

If they are giving you this rather bizarre choice of vouchers with recalculation or nothing, get them to do the calculation to show you. As I say, other than the period where you were only on SMP, how your SMP was calculated should make no difference to you.

Ok thanks thats a bit clearer. I do have this sneaking suspicion though that when they go back and recalculate my pay for the OML, they are going to calculate my overall maternity pay as normal pay minus the voucher value, then each month deduct the voucher value again before they pay me (obviously i have already received the the vouchers for OML). I have asked them for the figures before i make a decision, so hopefully I am wrong and it will be relatively straightforward.

Thanks again

If your policy says full pay then you should get the same as you normally get, otherwise you're not getting full pay, so that should be fine.

It's an old thread I know, but question fits here: just wondering whether an employer can actually say "we're not operating childcare vouchers as a non-cash benefit, we simply offer employees to buy them, so they can get the tax savings" in order to get round having to continue to pay them or are they talking out of their backside?