Does payment protection cover maternity leave: ask the expert

I am on maternity leave, but just prior to going on maternity leave there was a restructure within our department where my post changed and was downgraded in salary.  My employer has a payment protection policy in place so that my pay remains the same for 12 months before being reduced.  It is my belief that the payment protection should not kick in until I am back from maternity leave as I would not feel the full 12 months benefit of full pay protection – compared to a man in the same situation as I am on maternity pay.  Am I correct in thinking this as my employer is refusing to do this and wants to commence my payment protection from now -the first day of my maternity leave? Is payment protection in a restructure situation part of your contractual right?  I know that ladies who receive essential car user payments also receive these whilst on maternity leave – but this is a benefit.  My employer is saying that it is not about the money but the time factor – for me it is both and I do feel the sensible and reasonable thing to do would be to suspend the 12-month payment protection so that it kicks in on my return from maternity leave.

As you have suggested, you need to argue that implementing the Pay Protection Policy now, (ie whilst you are on maternity leave), as opposed to implementing it when you return from maternity leave, amounts to indirect sex discrimination.

The Sex Discrimination Act seeks to prevent employers from applying ostensibly neutral practices which have the effect of creating an unjustified disadvantage for women. This is know as ‘indirect’ sex discrimination. Implementing the Pay Protection Policy immediately, (rather than waiting until you return from maternity leave), indirectly discriminates against you, given that the pay protection scheme is not a benefit to you until you return from maternity leave and receive your usual salary, as opposed to maternity pay. This therefore has a discriminatory effect on women.

I recommend that you have a discussion with your employer pointing out the above. If your employer still refuses to postpone the commencement of the Payment Protection Policy in relation to you, I recommend that you lodge a formal grievance in respect of the same, stating that this amounts to sex discrimination, for the reasons set out above.

If this matter is not resolved, you would have a potential claim for sex discrimination.

Comments [3]

  • Alexa says:

    I am in a similar position requesting for advice – pay protection was implemented during my maternity leave – my maternity pay was based on my salary prior to the pay protection. I believe that my pay protection should start when I am no longer on maternity leave but I have no legal underpinning. Please can I get some advice?

  • Anonymous says:

    Hi Tracey, Just to check a point on your answer….if the company paid enhanced maternity pay which included full pay for a set number of weeks and the end of the pay protection period fell within the enhanced period, would they still need to defer pay protection until the return to work? If mum receives the pay protection as part of her enhanced maternity pay, she would be getting it twice if it was deferred? Also if the protected period ran out during the enhanced period, can the employer drop the 'full pay' to the substantive salary without protection? The reason I ask is because the question posed didn't explain whether the mum in question was receiving SMP or an enhanced package.

    Editor: Apologies for the delay. Tracey says: This is a really complicated and technical area and it will take quite a lot of time to research and answer all the points you raise. She will happily look into this further, but would have to give a quote for doing the work as it is likely to take a while. Tracey's contact details are 0161 975 3823.

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