I have resigned while on maternity leave after my husband’s job relocated. I had intended to return, but as circumstances have changed I informed my line manager and had a meeting with them where they said the company had agreed that I would not have to pay any enhanced maternity pay back – the company policy says you have to repay it if you do not return for three months. Based on that I resigned and served my notice. The company now says I have to pay back the three months’ maternity pay, citing the policy. Am I legally obliged to repay the maternity pay?
The obligation of the employee to repay the maternity pay first depends on whether the employee was being paid statutory maternity pay only, or contractual maternity pay alongside this. If the employee was solely receiving statutory maternity pay, they have no requirement to pay back any amount if they resign during their maternity leave. Resigning does not impact the right of the employee to receive statutory maternity pay.There is also no obligation for an employee receiving statutory maternity pay to return to work after their maternity leave ends.
Contractual maternity pay, which this employee is most likely on, differs to statutory pay. Employers can specify requirements which the employee must fulfil to receive their contractual maternity. They also have the ability to set out further stipulations, such as requiring the employee to return to work after their maternity leave in order to receive the payment. Employers cannot force employees on maternity leave to return to work, however, but they can claim back any pay outlined in the policy should the employee decide not to return.
In this case, the employee and her line manager had an agreement which changed the terms of the policy. The employer and employee in question created a verbal contractual agreement which outlined the terms of the employment termination. Here, the line manager and senior manager confirmed the employment contract could end on the sole condition that the employee returned for a final shift. The employee accepted this offer and completed it to the specifications set out in the agreement.
The verbal agreement made by employer and employee, in this instance, is the deciding factor. The employee formally notified her employer in writing that she would be returning to work whilst 25 weeks into her pregnancy. The employee, therefore, must argue that they created a new, oral and lawful contract during the meeting requested by the line manager. This new oral contract must be presented as valid, on the premise that they had informed the employee on two separate occasions that she would not be required to pay back any maternity pay. The employee will need to consider how she evidences the new agreement that was put in place. If her resignation letters clearly sets out the new agreement then this is going to be her evidence, but if this is not in writing then the employee is going need to consider what other evidence she has of this new agreement if this was all done verbally i.e. does she have witnesses that can confirm the new agreement.