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I worked as a senior director for 3.5 years, until I was fired because of a whistleblowing issue. With the help of lawyers, I fought this unfair dismissal and in the end I signed a settlement agreement. Unfortunately, I signed that agreement one week before I realised I was pregnant. It was a bad settlement agreement and certainly doesn’t compensate for the loss I will suffer on an unpaid maternity leave – but I signed it in part because I was getting so emotional I was worried the stress of negotiations were affecting my health. I also had a lot of offers of new work at the time and no idea I was pregnant. Anyway, my last day as agreed may fall short of the “15 weeks before my due date” requirement to qualify for my old employers to pay my maternity pay. All my job offers have gone since I have told them I was pregnant, leaving me with the prospects of no work until after my maternity leave. I have two questions: 1) How set in stone is the “due date” requirement given that pregnancy dating by ultrasound is not an exact science and pregnancies themselves can last 38-42 weeks? My current estimated due date would fall comfortably within 7-10’days of the 15 week Qualifying Week requirement, and it seems unfair that I should be denied it. 2) What are the chances I can reopen the settlement agreement on the grounds that I am now suffering previously unforeseen loss that the settlement agreement failed to contemplate? Is there case law about unforeseen pregnancies affecting agreements?
I’m sorry that you have found yourself in this position.
As you have rightly identified, to qualify for statutory maternity pay you would have to have been continuously employed for at least 26 weeks by the end of the qualifying week. However, the qualifying week is the 15th week before the ‘expected week of childbirth’, rather than your due date. The expected week of childbirth is the week (running from Sunday to Saturday) in which childbirth is expected to occur, as confirmed on your MAT B1 certificate. Therefore, I would recommend checking what the expected week of childbirth is and calculating your qualifying week. In order to qualify for statutory maternity pay, you must have at least one day of employment in the qualifying week.
In relation to your settlement agreement, in the absence of any other reason that may make it non-binding, it seems it would be extremely difficult to have this set-aside. Courts are reluctant to interfere in settlement agreements where information comes to light afterwards which makes it a ‘bad bargain’ for one party.
I note that you have had job offers revoked since you informed your prospective employers of your pregnancy. If an employer withdraws a job offer because the applicant is pregnant, this constitutes discrimination on the grounds of pregnancy, and you could have a claim against these employers. It’s worth seeking legal advice in relation to potential claims you may have for pregnancy discrimination.
You may also have a negligence claim against the solicitor who provided you with advice on the terms of the agreement if they did not properly advise you about the conditions of the agreement and the potential value of the claims you were compromising. Much depends on what precisely you instructed your solicitor to provide advice about and whether you had confirmed you already had offers of alternative employment. Again, it is worth seeking legal advice about any potential claim.