Poor maternity policy?: ask the expert

With regard to the first part of your question, the basic statutory position is that a woman is entitled to the same contractual rights during matenity leave that she enjoyed before going on maternity leave, with the exception of remuneration.

Remuneration includes benefits such as salary, but HMRC also take the view that other cash benefits, such as a car allowance or benefits that are provided for business use only, for example, a company car provided for business use, will also fall within the scope of remuneration. Consequently, the general consenus is that benefits such as car allowances do not have to be continued to be paid to an employee during maternity leave.

Irrespective of what employees are entitled to during maternity leave under statute, individual employers may, of course, provide employees with more generous benefits during maternity leave, but if your employer does not offer more generous benefits then, unfortunately, you do not have the right to continue to receive your company car allowance during your maternity leave. That said, there is no reason why you cannot at least ask your employers whether they will continue to pay your car allowance during your maternity leave, given that in your role it is essential that you have a new car and will therefore need the car allowance in order to ensure that you can afford to keep the car for use when you return from maternity leave; however, they may well refuse to continue this benefit during your maternity leave.

In relation to the second part of your question, if a new company takes over your company will you be entitled to the benefit of their maternity policy. The answer to this will depend on whether the maternity policy with the current employer is non-contractual or contractual.

If it is a contractual policy that answer is likely to be ‘no’. This is because a takeover of one company by another is likely to be covered by the Transfer of Undertakings Protection of Employment Regulations(‘TUPE’). Under TUPE on a company takeover your employment will automatically transfer to the new company and you will retain exactly the same contractual terms and conditions of employment that you were under with the old company post transfer including contractual terms and conditions relating to maternity leave and pay. If, however, the policy is non-contractual, as is more likely to be the case, then the new company can, and in fact may well, offer you the benefit of their maternity policy in place of the benefits under your previous employer’s policy. Ultimately, however, it will be the new company’s choice as to whether they offer you the benefit of any non-contractual policies they have in place.

Charlotte Mepham contributed research and advice on this question. 

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