Work Life Balance
Divorce in the AI age
In today's fast-paced world, juggling work, family and personal matters can be...read more
Do you owe enhanced maternity pay if you resign?
I have decided not to return to my job as I have been offered a very flexible part time role near home. I never intended to resign. The job I have accepted is a friend who understood I was worrying about returning to a high pressured role, so I made no provisions/budget for resigning. I informed the company eight weeks ahead of my proposed return date and all was fine. Seven weeks later, having handed in my notice and accepted the other job, I have been told I need to reimburse them for my enhanced maternity pay (roughly £5k). This is in my policy, the wording states “if the employee does not return to work or they leave voluntarily within six months of returning, the company reserves the right to request they reimburse any enhanced CMP received over and above SMP.” My questions are: do I have any grounds to negotiate the amount based on the fact it’s a right to request rather than a rule? I know a former colleague hasn’t been asked to pay back Enhanced Maternity Pay after leaving six months ago. There was no negotiation or discussion, she simply wasn’t asked. Does this set any precedent? Finally, if I have to pay it back there are no terms for instalments or timeframes in the policy so can I suggest small amounts for the foreseeable future? I have taken a huge paycut and also have childcare costs to pay now. I don’t want to be bullied into larger less sustainable amounts if this isn’t necessary.
I understand that you have decided not to return to your old job following a period of maternity leave. You have been informed by your employer that you need to reimburse them for your enhanced maternity pay. Your employer’s policy states “if the employee does not return to work or they leave voluntarily within six months of returning, the company reserves the right to request they reimburse any enhanced CMP received over and above SMP.” You have asked whether you have any grounds to negotiate the amount based on the fact it’s a right to request rather than a rule and you also state that you know a former colleague hasn’t been asked to pay enhanced maternity pay back after leaving six months ago.
Requiring employees who have been on maternity leave to repay enhanced maternity pay if they don’t return to work for a specified period of time after maternity leave is a common provision in an employer’s maternity policy and it is legitimate for your employer to request that this is paid back.
However, you could have an argument that your employer’s actions constitute a breach of your contract of employment, which would entitle you to bring a breach of contract claim in the employment tribunal/courts. If your employer has a practice of never requesting repayment, you could argue that this term is implied into your employment contract by custom and practice. However, to constitute a binding implied term, a custom or practice must be reasonable, notorious and certain. You could certainly argue this to your employer. However, please bear in mind that this argument is unlikely to be successful if this practice of not requiring repayment is not applied automatically across the board and/or there are variations to this practice.
You could also argue that, even if the non-repayment provision is not an implied contractual term, your employer’s managerial prerogative, should be restricted by the implied duty of trust and confidence, which is also an implied contractual term. In this respect, your employer is not under a duty to act reasonably. However, your employer must not act irrationally or perversely (that is, in a manner in which no reasonable employer would have acted) when exercising its managerial discretion. Again, your argument here is not a strong one because to establish a breach, it is not enough for you to show that your employer’s actions have destroyed or seriously damaged trust and confidence, or were calculated or likely to do so. Your employer must have had no reasonable and proper cause for the actions in question and this will be quite difficult to demonstrate.
If your employer still insists on you repaying your enhanced maternity pay, you could request that you pay this back in instalments rather than in a lump sum or that a repayment plan is set up.
If you need any further assistance please contact Tracey Guest on 0161 975 3823.
Helen Frankland helped in the preparation of this answer.
Related
Flexible Working
Report shows impact of back-to-office policies on women
Nearly half of working women (47%) in the UK say that their stress levels are higher than...read more
Comments [2]
Alanya Kay says:
I work in a school and requested 3 days a week, I got refused 3 days a week and then the head began to ignore phone calls and emails so I turned up to work she told me to hold out and she might have something but not to worry, she then replied after me emailing her again saying budget reasons she can not give me part time hours, many part time staff have left and other part time staff have requested to come back full time but she has refused all requests. I didn’t sign anything but in person said I would be returning to work (informal in the corridor chat) I have emailed to say I will not be returning to work but not given my final date of leaving, I am now expected to return to work or pay maternity allowance back, I have expressed how I financially can not afford to go back with nursery fees and wrap around care for my oldest, my wage would not even cover childcare and I would have nothing left to survive! Can I get out of paying my maternity leave back, I am finally really struggling! Thank you
Mandy Garner says:
You say maternity allowance. You would not have to pay back maternity allowance. Are you sure it is maternity allowance and not enhanced maternity pay [MA is the statutory rate for 39 weeks; SMP is six weeks at 90% salary followed by 33 weeks at the statutory rate; enhanced maternity pay is an additional policy your employer might have]? If it is enhanced pay you need to check your employer’s policy and if it says you have to pay back the additional amount [on top of statutory payments] if you don’t return you would be legally obliged to do so but you could also try to negotiate this with your employer.