Do I have a right to enhanced maternity pay after years on fixed-term contracts?

I have worked on a series of continuous fixed-term contracts for four years as an employee.

I am pregnant and have previously been told that I am eligible for Statutory Maternity Pay. However, I  have read some articles that suggest that if you work for a company for over four years on a fixed-term contract, you should be eligible for the same entitlement as staff on permanent contracts, who, in my case, receive enhanced maternity pay.

Do you know if that is true or if it is something that I can explore?

Woman holding pregnancy test

 

This is a complicated scenario and my answer is based on certain presumptions, namely that you have been continuously employed on a series of fixed-term employment contracts spanning a period of four continuous years, and the expiry date on your current fixed-term contract will fall during your maternity leave period in 2024. It is important to bear in mind the employer’s enhanced maternity pay policy. Under your employer’s policies, which I have read, you would only qualify for enhanced maternity pay if you are under a contract of employment for the entirety of the maternity leave and a further six months thereafter. If the fixed-term contract expires as planned then in 2024 (i.e. either before or during your maternity leave period), the terms of the policy mean you would not qualify for enhanced maternity pay.

If you have been employed continuously on a series of fixed-term employment contracts for over four years, you could argue that your fixed-term contract has been converted to permanent employment.  You could seek a declaration from your employer to that effect, as that would then mean the 2024 expiry date will not apply and you would be entitled to the enhanced maternity pay if you meet all the other conditions. Your employer may, however, be able to reject that request and conversion if they can show that your continued employment on a fixed-term contract is objectively justifiable.

As a fixed-term employee, you have the right to not to be treated less favourably than a comparable permanent employee in respect of your terms and conditions of employment or by virtue of being subjected to a detriment because they are a fixed-term employee. The exception to this rule is where employers can objectively justify the less favourable treatment.

If your employer’s enhanced maternity pay is a contractual entitlement and you satisfy the conditions, failing to pay it to you would seem to constitute less favourable treatment for fixed-term employees. However, your employer may say (a) this is not a contractual entitlement and (b) the difference in treatment is objectively justifiable. This means you need to check the wording of the policy and employment contract to ascertain whether it is a contractual entitlement or could be argued as being contractual (that is, because it has become, by virtue of custom and practice, an implied contractual right), and then ask your employer to confirm their position. If they refuse to pay the enhanced maternity pay, ask them to confirm in writing the reason for this and how they consider it is objectively justifiable. If you are dissatisfied with their answer, you could raise a grievance and, depending on the outcome, consider taking legal advice on your position.

Non-renewal of a fixed-term contract is a dismissal for legal purposes and your employer should deal with that dismissal in a fair and lawful way, specifically, that they identify the reason for dismissal and non-renewal, and follow a fair process. Failure to do so could mean it is an unlawful and unfair dismissal. If you believe the reason for non-renewal is your pregnancy or maternity, then this could constitute discrimination on grounds of pregnancy/maternity and/or sex.

*Maria Hoeritzauer is a Partner at Crossland Employment Solicitors in Abingdon. 



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