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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.