Q And A
Maternity pay and redundancy: ask the expert
I am currently on maternity leave and due back in april 2010. I have, though, been offered a new job with a competitor which will start April 2010. Can you please advise as it is standard policy at work to place you on garden leave if you go to a competitor. Would my old employer have to pay me full wages for the last month on my maternity when I hand in my notice or would they have to pay me standard maternity pay?
Answer by Tracey Guest
Firstly, given that you will not be returning to work for your employer, you must ensure that you notify your employer giving notice, in accordance with the notice period specified in your contract of employment. (This is because an employee on maternity leave is bound by the contractual obligation to give notice to terminate her employment.)
It is an employer's decision as to whether or not they decide to place you on garden leave. I understand that custom and practice dictates that employees leaving to commence with a competitor are normally placed on garden leave (to protect the Company's business interests), rather than requiring an employee to work their notice period. However, given that you are currently on maternity leave, you are not attending work in any event. Therefore, it is highly unlikely that your employer will place you on garden leave and there is no obligation on them to do so. Unless you are placed on garden leave, you will only be entitled to statutory maternity pay.
A woman who is on maternity leave can bring a claim that she has been subjected to a detriment, on the basis that she has taken maternity leave. However, an employee on maternity leave is only entitled to benefit from the terms and conditions of employment that would have applied if she had not been absent, EXCLUDING those terms and conditions that relate to remuneration. You could suggest to your employer that by not placing you on garden leave, this amounts to a detriment, in the hope that your employer does place you on garden leave and pay you full salary. However, I do not believe that you would actually succeed with this argument at an Employment Tribunal.
Tracey Guest is head of employment and a partner at Slater Heelis in Manchester. She specialises in employment law and is also a working mum.