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Pregnant on maternity leave and being made redundant: ask the expert
I am on maternity leave and due back in April 2010. While I have been on maternity leave my department was restructured and I have no job to go back to. My employer agreed to let me take my full maternity leave, and agreed that at the end of my maternity leave I can take my accrued holiday and that they will then give me my notice of redundancy and 8 weeks’ paid notice period during which time I will look for a new job. I have just discovered that I am pregnant again, and I will be 22 weeks pregnant on the date that I am due to return to work. I have about 8 weeks’ holiday accrued so could go straight on maternity leave after taking my accrued holiday. My employer’s maternity allowance is more generous than SMP as it is calculated on my base salary not an average of my actual salary over the 8 weeks until I am 25 weeks pregnant. I therefore am trying to understand:
(1) If I am given notice of redundancy before I go on maternity leave or once I have begun my maternity leave, will I still be eligible for my employer’s maternity allowance or will I only receive SMP and how would this be paid?
(2) If I took my accrued holiday and then went straight on maternity leave does my employer have to make a payment in lieu of my notice period (i.e. 8 weeks at full pay)?
(3) If I serve some of my notice – for example in order to increase my SMP entitlement – and then go on maternity leave would I be entitled to a payment in lieu of the outstanding period of notice?
Question 1a:
“If I am given notice of redundancy before I go on maternity leave will I still be eligible for my employers maternity allowance or will I only receive SMP and how will it be paid?”
If your employers decide to give you notice to terminate your employment on the grounds of redundancy you will be entitled to receive your full notice pay. You state that you are entitled to 8 weeks notice and so you should receive 8 weeks full pay. Your contract of employment would then terminate unless you are paid in lieu of notice.
You state that your employers have an enhanced maternity allowance (EMA). Your entitlement to EMA would depend on the terms of the policy. In order to advise in full I would need to consider the policy. I would, however, be most surprised if it stated that you would be entitled to EMA after your contract of employment has been terminated. The usual position is that you would still be entitled to receive Statutory Maternity Pay (SMP) if made redundant, provided that you have 26 weeks of continuous employment with your employer up to and including 15th week before the expected week of confinement. Your employers would still be obliged to pay you your SMP through payroll in the usual way. However, it is also possible for them to pay SMP as a lump sum on your termination date if your maternity leave has been cut short by redundancy, and I suggest that this is an issue you raise if relevant.
Question 1b:
“Once I have begun my maternity leave, will I still be eligible for my employers maternity allowance or will I only received SMP?”
If you went on maternity leave before your employers gave you notice then you should be entitled to EMA, subject to the rules of the EMA scheme. For example, some enhanced maternity policies will only allow you to be entitled to EMA after you have been back from a previous maternity leave for a certain period. In order to advise properly as stated above, I would need to consider the EMA Policy. If you were not eligible for EMA you should be eligible for SMP provided you met the required criteria as stated above. The earliest that you could commence maternity leave would be 11th week before your EWC.
Question 2:
“If I took my accrued holiday and then went straight on maternity leave does my employer have to make a payment in lieu of my notice period (i.e. 8 weeks at full pay)?”
If you went on maternity leave you would receive 8 weeks notice pay at either the EMA rate or SMP rate, depending upon which rate was applicable to you. Your employers would not be obliged to pay you your full salary unless they wished to do so .
Question 3:
“If I serve some of my notice – for example in order to increase my SMP entitlement – and then go on maternity leave would I be entitled to a payment in lieu of the outstanding period of notice?”.
If you worked some of your notice after notice had been given by your employer and you then requested to go on maternity leave you would be entitled to receive the outstanding weeks salary due to you under the EMA or SMP whichever was applicable as you would in effect be switching into the maternity leave category.
If you decide to commence maternity leave at any stage you could always ask your employers if they would be prepared to pay you your full notice rather than at the maternity leave rate. This would be discretionary.
You mentioned that whilst you were on maternity leave your department was restructured and that you have no job to go back to. You are consequently going to be made redundant. If you could prove that you have been unfairly selected for redundancy and that your redundancy could have been avoided by offering you suitable alternative employment and/or you were selected for redundancy for a reason connected with your pregnancy you could have a claim for unfair dismissal and/or sex discrimination in the Employment Tribunal. A Tribunal may currently award compensation of up to £63,500 in terms of an unfair dismissal case. This cap is lifted in sex discrimination cases.
I hope the above clarifies your position.
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Comments [13]
Donna says:
I was made redundant 30/6/15. I was told by hr that I would get my remaining SMP monthly until February as normal. They issued my p45 last month so I’m now on 0t tax code and paying ridiculous amount of tax on my SMP! Basically leaving me now in financial hardship, were do I stand with this and what can I do?? My p45 didn’t have my redundancy or SMP on it either? I have only worked 16 hours so didn’t pay tax before and my redundancy was less than 30000
Anonymous says:
My Daughter was made redundent while on maternity leave the reason the charity shop she worked part time for gave was because they wantec a full time manager. My daughter put herself forward for the job.But they still made her redundent stating they did it on a point system are they able to dothis
Editor: Our HR expert Sandra Beale says: If she put herself forward for the job she should have had an interview and if there were several candidates they should have all been scored for suitability after the interview. The highest scored person gets the job. If they did not do this for her it is potentially discrimination.
Anonymous says:
Hello- I hope you can help. I went on Maternity leave on 16 March 2014. On 30th March I received a paycheck including my salary, SMP for 39 weeks and payment for my leftover holiday. The company has since moved to Germany. However, I was never given notice of being made redundant. Am I entitled to redundancy pay? I have worked at the company for 3 years. Thank you in advance.
Editor: You should have been consulted about your redundancy and you are entitled to redundancy pay – see https://www.gov.uk/redundant-your-rights/overview. This page has details of what to do if your company cannot or refuses to pay you - http://www.nidirect.gov.uk/redundancy-pay
Anonymous says:
Hi,
My question is if my company have informed me that i am redundant, given me notice etc… and they are still paying my 6 weeks full pay and 33 weeks smp (monthly) do i still accrue my Holiday whilst i am receiving smp even though i am redundant. Or will i only receive what i have accrued to the date i was given notice. (I'm currently 28 weeks pregnant)
Before i was given notice, i had planned to take ALL of my holiday allowance for the remainder of the year, they verbally agreed that this was ok and i was going to take this before my maternity leave begun.
I feel like they are trying to get our of something by going back on there word on my holiday agreement.
Editor: You would only be entitled to holiday up to the time you are made redundant.
Anonymous says:
Hi, I have been in a similar situation. I was going on maternity leave in July 2013 and was told my team were being made redundant due to relocation! I received my notice pay, company maternity pay and smp as lump sum in July. I have called ACAS and they seem unsure as to when I should really sign on at the job centre. Please could you let me know what the process is I need to follow and when I should go to the job centre to inform them that I have been made redundant? Is this now or around when my smp would have ran to?
Many thanks
Editor: While you are on maternity leave and in receipt of SMP [39 weeks of your mat leave] you cannot claim JSA so contact them when you are ready to return to work.
Anonymous says:
Hi there, i have been given notice for redundancy and am 26 weeks pregnant. I have been with the company 6 years and will receive redundancy and notice pay. I also know the company will have to pay me SMP, but was just wondering when they pay this to me. Do I get the SMP weekly for 39 weeks then get my redundancy and notice pay at the end of those weeks or do they pay the whole lot including SMP in one go when i leave on maternity leave?
Editor: This is down to the employer, but usually SMP continues to be paid as normal. Ask your employer for clarification. HMRC doesn't like it being paid in a lump sum because it has tax implications. If your employer does suggest this, you could attempt to negotiate with them over it. See https://www.workingmums.co.uk/advice-and-support/q-and-a/all/761196/redundancy-money-on-maternity-leave-ask-the-expert.thtml
Anonymous says:
I've just finished my mat leave and work have let me carry over my holiday. My hols run jan to dec. I'm on hols 10th dec 2013 to 22nd jan 2014 so I'm getting full pay. However, my company have just gone into liquidation!! So will I still get my 6 wks holiday pay that I'm owed??
Editor: An employee of a Limited Company has a right to claim monies owed to him (for arrears of wages, holiday pay, notice pay & redundancy pay) from the Department of Trade and Industry's, Redundancy Payments Office ("RPO") , if their employer has gone into Creditors Voluntary Liquidation, Compulsory Liquidation, an Administration order has been made against it or a company voluntary arrangement has been approved. I am not sure where you live, but you would need to contact the relevant RPO in your area – see http://www.insolvencydirect.bis.gov.uk/contactus/rp/officemap.htm
Anonymous says:
hi I work for a franchise and I have been told I am only entitled to 6 weeks maternity pay. I would appreciate your advice on this and any other entitlements thanks laura
Editor: If you have worked there since just before your pregnancy until at least the 26th week of your pregnancy and earned over £109 a week on average in the eight weeks up to your 26th week of pregnancy you are entitled to SMP – 6 weeks at 90% of your salary and then 33 weeks at £136.78 a week or 90% of your average weekly wage, whichever is lower.
Anonymous says:
Hello,
I was wondering if anyone had any advice, I was told 3 days after telling my manager that I was pregnant that I was being made redundant. No date has yet been set, but I have been there 14 months so will probably only get a week's notice.
I am currently 20 weeks pregnant and unsure where this leaves me regarding SMP.
He has said that the only alternative would be to reduce my hours down to 16 hours a week (from full time), but would this mean that my SMP would be reduced or is it a standard amount that I would receive? If I took the reduced hours and then he made me redundant in Jan (baby due end of Feb) will these reduced hours affect how much Maternity Allowance I would be entitled to from the job centre, or again is this a set amount?
I have looked online and spoken to the job centre who told me to ring the SMP help line, they said they ‘think’ the company would still have to pay me SMP if they aren’t going into liquidation and I have phoned ACAS and citizens advice, but nobody seems to be able to give me a straight answer. Any help would be much appreciated.
Editor: To qualify for SMP you need to be still with your employer in the 26th week of your employment so if your last day is before your 26th week you would not qualify, but would get Maternity Allowance which you need to apply for from Job Centre Plus. SMP is calculated based on your average earnings in the eights weeks leading up to your 26th week so it would depend when your part-time hours kicked in. See this for Maternity Allowance rates. Do you believe that your redundancy is related to your pregnancy, as this is discrimination and illegal, but you would need to be able to prove it.
Anonymous says:
Hi-Please could you help? I am due to start maternity leave in 6 weeks and have been employed in the same company for over 8 years. Work have now said I might be made redundant. If so they need to give me 8 weeks’ notice and therefore I will be on maternity leave when I am made redundant. Will they have to pay me maternity or will I have to claim this from the government? Thanks.
Editor: Are you talking about SMP? If so, your employer is still responsible for paying your SMP when you are made redundant and they may pay this in a lump sum with any redundancy pay, etc. See https://www.workingmums.co.uk/advice-and-support/q-and-a/all/291991/pregnant-and-being-made-redundant-ask-the-expert.thtml 
Anonymous says:
I am in my 9th month of maternity leave & am due to go back to work 3rd January. I met with my boss last week and he said he was going to retire sometime next year & that he was going to be making me redundant. My position is being covered until end of December but then my position as Pa to MD will exist no more. Should I be given one month’s notice in pay as well as statutory redundancy pay. I have worked there for 4.5 years!
Editor: You will have to check your contract on redundancy entitlement, but you have certain protection if you are on maternity leave from redundancy. Have you been offered any alternative post? See https://www.workingmums.co.uk/advice-and-support/career-advice/399271/maternity-and-redundancy-your-rights.thtml. If you can give some further details via the Advice and Support/Q & A box we will be able to forward to our experts.
Anonymous says:
Hi, I am due to go on maternity leave and my employer said they may need to make me redundant. I was just wondering what my rights are.
1) I am now 26 weeks pregnant, so do I still qualify for SMP
2) How much notice do they need to give you to make you redundant.
3)I have worked for the family as a nanny for 2 and a half years; how will my redundancy be worked out
4)Will I still accrue annual leave while I am on SMP, even though I will not be returning to that role.
Thank you for your help:-)
Editor’s note: You would still qualify for SMP as you are beyond the qualifying week for SMP. However, your employer cannot make you redundant simply because you are pregnant and going on maternity leave. For information on redundancy notice and unfair dismissal, click here. See also this which you may be able to show your employer as they may be unaware of the law around this.
Anonymous says:
Just been reading your above information. I have been made redundant and am going to get SMP so do I still accrue holidays while on SMP even though I won’t be going back?
Editor: See https://www.workingmums.co.uk/advice-and-support/q-and-a/5076314/company-in-liquidation-during-maternity-leave-ask-the-expert.thtml for more information.