Contractual maternity pay and notice period

I’m thinking of just going back to work for the contractual minimum of three months after maternity leave just to pay back the company maternity pay they have given me. I emailed HR and asked them if I could hand my notice in as soon as I return, as my notice period is three months, work those three months of my notice period, which would also cover the working for a minimum of three months to pay back the CMP, and then leave. HR replied and said I couldn’t do that and that I would have to work the minimum three months to pay back the CMP and then hand my notice in and then work the further three months notice period. So that’s six months I would need to go back for. I had a look in the company handbook maternity section and it doesn’t mention that. It only states that I would need to return and work a minimum of three months. What should I do?

I have considered your handbook, in particular the clause relating to Company Maternity Pay (“CMP”), which states that the receipt of CMP is dependent on you returning to work for three months following the end of your maternity leave. I understand that the company has informed you that you must work three months in order to avoid paying back the CMP that you have received, and then work a further three months as your notice period.

Unfortunately, the answer to this is not clear cut. On a strict reading of the policy, I would agree with you that you should be able to work the three months as your notice period while qualifying for the CMP, as the policy does not strictly prohibit this (i.e. it does not state “except for when notice of termination is given”).

However, it can certainly be argued by the company that working three months’ notice is not “returning to work” as required by the policy. The policy appears to be discretionary and, therefore, there is a risk that the company will seek to reclaim the CMP that you have been paid. It would be the safer option, in the circumstances, to work a total of six months (handing in your notice at the end of the first three months) in order to ensure that the company does not attempt to reclaim the CMP. This would be the most advisable option if you want to ensure you are not liable to the pay the CMP back.

Practically, if you only wish to work a maximum of three months then you could resign without notice at the end of the CMP qualifying period. In this situation you would not work your notice period and neither would you be paid for it. However, this is likely to leave the company in trouble as they will not have the time to replace you and you would presumably not prepare any handover notes. The company could sue you for breach of contract and, if successful, may be awarded the costs of replacing you so this suggestion is far from ideal.

You may be able to agree a shorter notice period with HR, and I would suggest that you start with this. Alternatively, it may be worth asking if you can use any accrued holiday entitlement at the end of the notice period in order to reduce the three-month period.

I hope this assists you with your decision. If you require further advice or assistance, or if you wish to discuss this matter further, please do not hesitate to contact me.

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