Can I return to work if I take a second job during maternity leave?

I am currently on maternity leave from my permanent, FT, PAYE job. I also have self-employed tax status for acting work. I recently got an acting job. My maternity leave started mid-July. They have advised they can’t pay me SMP any more which is obviously fine as I am earning! But what are my rights in terms of wanting to return to that job if I wish? They have said they are happy for me to return, but they are stopping my pension contributions and my childcare vouchers that they were paying and they advise that HMRC have said my maternity leave and pay has ended…I’m waiting to hear back from them, but just want to get clarification on my rights with that job (right to return, pension/childcare voucher payments and holiday accrual), now I have taken a self-employed acting job.

NB for the acting job, the theatre company is my employer in terms of employee rights and they pay me through PAYE, but I am responsible for my own tax and NI when I do my self-assessment tax return.

Maternity Notice letter

Close-up Of A Woman's Hand Filling Maternity Leave Form Holding Pen Over Desk

The rules on earning money during maternity leave can be complex and confusing. You are still under an employment contract while on maternity leave so it’s worth checking in the first instance that it doesn’t prevent you from doing other work. It appears that your employer is fine with you working for the theatre and, if this is self-employment”, earnings received during the maternity pay period will not affect Statutory Maternity Pay (SMP). The Department for Work and Pensions makes this clear: If you do any work in a self-employed capacity during your maternity pay period, then such work will not affect your SMP.

However, being responsible for your own tax and NI, and submitting a self-assessment tax return each year, does not necessarily mean that you are working in a “self-employed capacity. If, as you say, for the acting job, the theatre company is my employer in terms of employment rights”, and you are paid through their PAYE, scheme then you may, in fact, be an employee in both jobs.

Working for two employers during maternity leave i.e. receiving SMP from one and wages from another does not necessarily mean SMP will stop. SMP is not affected by earnings from an employer for which you worked during the 15th week before the week the baby was due. However, this does not apply in your case, as you did not start the acting job until after the start of your maternity leave; in other words, you were not working for the theatre in the 15th week before the week your baby was due. Your SMP will, therefore, be affected by your earnings from the theatre.

Apart from “remuneration”, all your terms and conditions of employment are protected during Statutory Maternity Leave. This includes your right to pay rises and accrued holiday, and the right to return to work. Pension contributions should continue to be paid by your employer during the Ordinary Maternity Leave (OML) period – i.e. the first 26 weeksand for any further period during which you are being paid. For example, pension contributions can be paid during the Additional Maternity Leave (AML) period, but only for as long as you continue to receive SMP (or maternity pay under your contract).

As for childcare vouchers, these are regarded as a non-cash benefit, and are therefore payable throughout maternity leave. If – as you have stated – your employer stops paying (employer-funded) childcare vouchers during your maternity leave, you may be able to pursue a discrimination claim in the employment tribunal.

Holiday entitlement accrues during maternity leave regardless of whether or not you receive earnings or SMP. If you decide not to return to work, you will be entitled to payment in lieu of holiday accrued up to the date that your employment ends.

If you intend to return to work after OML, you must give your employer eight weeks’ notice. You have the right to return to your original job on all the same terms and conditions (or better, if your salary increased during your maternity leave). If this doesn’t happen, you may have grounds for a claim of unfair dismissal and/or maternity discrimination against your employer. Your right to return after OML is unaffected by any earnings from self-employment or other employment received during your maternity leave.

If you decide to return during or after the AML period – i.e. up to 52 weeks you are entitled to return to your original job unless your employer can show that it is not practicable for you to do so, in which case you are entitled to return to an alternative job on similar terms and conditions. Remember that the burden is on your employer to prove that it is not reasonably practicable for you to return to your original job.

Please note that my answer assumes that your maternity leave began in July 2015 – if not, this will affect the advice given.

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