Could I be asked to pay back SMP?: ask the expert

I am due to start maternity leave in February. I sent my Mat B1 form to my employer as requested even though I know I don’t qualify for SMP as I earn just below the weekly requirement of £107. I know this because I have gone through the workings out of all my payslips during the eight-week qualifying period. I was surprised when I received a letter from my employer stating I do in fact qualify for full SMP and they have detailed the payments and weeks commencing etc. My question is: If they’ve made a mistake where do I stand legally if they suddenly change their mind and want me to pay it back?

I understand that you think that you should not qualify for SMP because you earn just below the weekly requirement of £107. However, I understand that you have received a letter from your employer, which states that you do in fact qualify for SMP.

In order to qualify for SMP, your normal weekly earnings for the eight weeks ending with the qualifying week (which is the 15th week before the week in which you are expected to give birth) must be at least the lower earnings limit for the relevant tax year. For the current tax year, this is £107. Your normal weekly earnings for these purposes means gross earnings and includes all remuneration derived from your employment.

If your employer wrongly pays you SMP when you are not entitled to it, your employer may recover this from you in the same way as it would recover an overpayment of your wages. Your employer would be entitled to do this if there is an express term in your contract of employment entitling it to make deductions. However, if there is no such term and your employer does make deductions from your wages to recover the overpayment, you may be entitled to submit a claim to the High Court/County Court (or to the Employment Tribunal if your employment has ended) for breach of contract/estoppel to try to prevent your employer recouping the money it has overpaid to you. Your argument here would be that it would be unjust for you to be required to repay any or part of an overpayment.

It would be advisable to review your normal weekly earnings over the relevant eight weeks with your employer so that you can understand and agree whether you are indeed entitled to SMP. If you have queried this and your employer again confirms that you are entitled to SMP, this will strengthen your position if, despite your queries, your employer still decides to pay you SMP and subsequently tries to recover this from you. If your employer decides that you are not in fact entitled to SMP, you may still be entitled to claim Maternity Allowance.

If you would like any further information, please do not hesitate to contact Tracey Guest on 0161 975 3823.





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