I began my maternity leave in May last year, but haven’t been paid my maternity pay since June. After chasing my boss for my pay and having no response I went to the DWP and set up a formal dispute. My boss won’t respond to them and is ignoring me. I still haven’t been paid and he now owes me over six months of pay. I sent him an e-mail saying that I intend to return to work soon, but don’t expect a response and know from a colleague (who isn’t on maternity leave and hasn’t been paid since July either) that the business has moved premises, so unless he gets back to me when I do return to work I won’t know where to go. I am wondering what my next course of action should be. I would like to force him into making me redundant, or be able to take him to a tribunal for constructive dismissal, but have been told that this would be hard to prove. Any advice would be greatly appreciated.
Given that you are on maternity leave, you have additional rights. You have the right to return to your previous role and if your employer does not respond to your email in respect of your intention to return to work on 6th February, then you will have potential claims for sex discrimination and automatically unfair dismissal, if your employer does not allow you to return.
Also, given that the business has moved premises, this actually amounts to a redundancy situation (usually a business moving premises simply moves its staff, so that no employee is actually made redundant as a result. Under a strict legal interpretation, all employees who are required to move premises should be informed that they are at risk of redundancy. Usually then offering new positions to the employees at the new location amounts to suitable alternative employment, which would avoid their potential redundancies). The fact that your employer has not consulted with you about the change in location, presumably because you are on maternity leave, could also amount to sex discrimination.
It is correct that a claim for constructive dismissal (when you resign and bring a claim) is more difficult to bring than a claim for unfair dismissal (when your employer dismisses you), and therefore you need to put yourself in the strongest position. My advice is that you send a further email to your employer again confirming that you intend to return to work on 6th February 2012 and also chasing payment of your outstanding maternity pay. I also advise you to put a copy of this letter in the post, to both the old and new premises. If your employer does not reply to your email/letter, then you could resign with immediate effect as a result of his actions in failing to pay you your maternity pay and failing to respond to your request to return to work. An alternative would be for you to instruct a solicitor to send a without prejudice letter on your behalf, seeking a termination package.
In respect of your employer’s failure to pay SMP, you can apply to HMRC within 6 months and ask HMRC to make a formal decision. You can also bring a claim at the employment tribunal for unlawful deduction from wages, within 3 months.
If you would like to discuss your options further, please do not hesitate to contact Tracey Guest on 0161 975 3823. (Please do not resign without seeking further advice.)