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Enhanced maternity pay withdrawn: ask the expert
I have been on a maternity contract for 14 months. The girl is not coming back and has resigned (she is now launching a tribunal against them for indirect sex discrimination related to her pregnancy and flexi time rights – a process which has so far taken over 4 months). My original contract was until June, and when the woman didn’t return I kept being extended for 1 month at a time. I then fell pregnant myself and am currently 7 months pregnant. They kept assuring me they would extend me until and through my maternity leave, and this week I finally have my date of maternity leave and they said they will extend me until and hopefully beyond then and I’ll quality for full maternity. I clearly meet the terms of their enhanced maternity. At my initial job interview, my boss already strongly indicated the woman wouldn’t return and the role would be made permanent for me in the future. Since I’ve become pregnant this seems to have changed and my boss’ attitude has become markedly withdrawn and at times hostile towards me. Now, I have had to chase them continually for updates even when my contract was due to expire within 1 week, and have been provided the very briefest of information. I have been told I don’t qualify for the enhanced maternity as my leave date for maternity is actually regarded by them as my end date at the company, full stop. So they see this as not needing to provide me with my full maternity rights. I also wonder how I stand in terms of having being employed on several fixed term contracts for well over 1 year now, in the same role, that does exist and clearly will still need to exist, but is not being offered to me now the woman has confirmed she is not returning to claim her role? I feel this has all changed since I have become pregnant. I feel really upset and frustrated and angry this has dragged on to this extent, with me staying in the role after firm assurances I would be given maternity rights.
This is a very unfortunate situation however, sadly, a fairly common scenario. Pregnant employees on fixed-term contracts have similar employment protection rights as their permanent counterparts.
The Equality Act 2010 protects pregnant employees from unfavourable treatment due to their pregnancy or because they have sought or are seeking to exercise their right to maternity leave. Any dismissal that was influenced by your pregnancy or your taking of maternity leave would be automatically unfair, which does not require the usual two years service in order to bring a claim to the Employment Tribunal. You would also potentially have a sex discrimination claim.
In order to defend such a claim your employer would have to prove that its revised decision regarding the role was not linked to your pregnancy or maternity leave in any way whatsoever. If you have written evidence of your employer’s intention to offer you a permanent contract following the end of the current fixed term then this would strengthen your case.
Given that they are also already subject to a Tribunal claim of indirect sex discrimination from the previous employee, this may also go in your favour should you decide to pursue similar action.
If the role you are currently fulfilling is genuinely no longer required at the end of the fixed term and you are made redundant during your maternity leave, your employer has an obligation to offer you any suitable alternative roles (where any are available) to start immediately after your existing contract ends. You would not need to apply for such positions as they should be offered to you by your employer over all other employees.
In respect of maternity pay, you are entitled to SMP even if you leave your employment, as long as you are still employed at the start of the ‘Qualifying Week’, which is the 15th week before the expected week of childbirth. In order to advise on whether you have a contractual right to enhanced maternity pay I would need to see the precise terms of the scheme although it may be the case that your employers are not entitled to withhold payment if you meet the qualifying conditions pursuant to the scheme.
I would recommend seeking specialist legal advice to ensure the best outcome in your circumstances if their current position remains unchanged.”
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