I started a maternity cover contract (with no end date) last year and I am pregnant and expecting in the summer. The lady I’m covering is due back three days a week the week I’m due off on maternity leave. The post is full time, but my boss has told me that they can’t now afford to pay for more than three days a week. If I wasn’t going on maternity leave, I think they would be keeping me on, at least until the returning lady is settled. I understand I’m entitled to statutory maternity pay. My work have suggested accruing annual leave until the end of my SMP. Am I entitled to full maternity leave of 52 weeks and associated accrued annual leave? Am I entitled to a role at the end of maternity leave?
Because you are so close to your due date, you are entitled to receive Statutory Maternity Pay (SMP) in full (i.e. 90% of your normal gross weekly salary for six weeks, and then the lower of 90% of your normal gross weekly earnings or £139.58 per week for a further 33 weeks). Assuming that you have provided your employer with the correct notices to qualify for SMP, these payments will be guaranteed to you regardless of what happens with your role and your colleague returning from maternity leave. You will only accrue holiday if you are still employed and on maternity leave.
Based on the information that you’ve provided, it appears that you and your employer intended to enter into a temporary contract of employment whereby you provide cover for another employee until they can return to their role. Your job title says “Maternity Cover” which suggests it was not intended to be a permanent appointment as maternity leave can only be for a finite amount of time.
The law requires ‘clear and unambiguous’ language between the employer and employee that the appointment is limited in nature. Inserting the words ‘maternity cover’ in a contract is likely to be enough. It would also explain why they cannot give you an end date because they do not know for definite when this lady is returning.
However, it is worth scrutinising the job advert you applied for and any letters your employer has sent to you about your employment to see if this contradicts what is in your contract about being maternity cover.
As eight weeks’ notice is required to bring maternity leave to an end early, and assuming this has not been served, then your contract will end on the intended return date of the lady for whom you are providing the cover. At that point your employment would end and the official reason for this is ‘some other substantial reason’ which is a fair reason for dismissal. You would be entitled to a payment for any holiday you had accrued but not taken up to that date, but you would not accrue any holiday after the termination of your employment.
Your employer could offer to extend your contract and to offer you an ongoing role, but they would not be obliged to do so. If you were to agree to remain employed on a permanent but part-time basis, you would be entitled to a full 52 weeks’ maternity leave, and you would accrue holiday over that period, although your holiday entitlement would be pro-rata’d to your part time status. Again, your right to receive SMP would remain unaffected by any change in your contract or employment status.
If your employment had not been specifically as maternity cover then, although your employment could still be terminated at the end of the term, your dismissal would be treated as a redundancy.
In any redundancy situation, your employer should consult with you. This should include exploring options to avoid the termination of your employment, which could include the opportunity to work part-time or to job share with your colleague as she returns from maternity leave, or to look for another role within the business. As you would be on maternity leave at the time of your redundancy, if there is another role within the business which would be suitable for you (in that it involves similar work, requires similar skills and has similar terms and conditions) then that role should be offered to you ahead of anyone else within the business or any external candidates.
If that were the case, and you decided to accept the new role, then you would remain an employee of the business, you would be entitled to your full maternity leave of 52 weeks, SMP and to accrue annual leave over that period.