Do I have to pay back contractual maternity pay?

I am hoping you may be able to help with my current situation. I am currently a serving police officer who resigned at the end of my maternity leave. I am not returning to work my notice. Before commencing maternity leave I asked HR if I were to resign if I would have to pay my CMP back, they confirmed although written in policy that I would not have to. Apparently nothing in police regulations state I have to. I therefore commenced my maternity leave and began to use my CMP as I see fit. I then got an email during my maternity leave to say actually we are now going to adhere to the policy and you do have to pay it back. Unsurprisingly, I do not have the money to give back and am wondering where I go next with this? Any advice you can give me?

Pregnant woman


I understand that you were a serving police officer before resigning at the end of your maternity leave. Before commencing your maternity leave you were informed by your HR Department (confirmed in writing) that if you resigned you would not have to pay back your Contractual Maternity Pay despite what was written in the policy. Your employer changed their mind during your maternity leave and informed you by email that CMP would need to be re-paid. They now want you to repay the full amount of CMP.

Whether you are entitled to keep the CMP depends on what the correct contractual position is. Contractual terms about repayment of CMP are often found in policies and this would be the starting point to establish the correct contractual position. However, contracts can be varied by agreement or by custom and practice.

Variation by Agreement
It appears that the contractual position on your CMP was varied by the first email and you agreed to this variation i.e. that you do not have to re-pay CMP. Your employer then attempted to change the contractual position again by emailing you with the change. I am not sure when this latter email was sent or whether you objected at the time. You would have to argue that you did not agree to this change. However, if you have delayed in objecting, this could be seen as agreement to the change.

Custom and Practice
If it was normal for police officers not to be required to repay CMP on resignation, then again this is an argument that the contractual position under the policy was changed. However, as detailed above, there was an attempt to change this position by the email stating that you had to repay the CMP. Whether this email varied your contract depends on the surrounding circumstances and you would need to take further legal advice.

In summary, you should be entitled to keep the CMP paid prior to the email stating you had to repay CMP. In relation to CMP paid after the date of this latter email, whether you can keep the CMP depends on whether there was a valid variation to your contract which would depend on factors such as whether you objected at the time or queried the email, what correspondence was entered into etc.

Due to the complexities of your problem I would suggest that you take further legal advice should your former employer continue to pursue you for the monies.

*Sarah Calderwood assisting in answering this question.

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