Inaccurate payment during qualifying period for SMP: ask the expert

After experiencing a stillbirth one week into my maternity leave, I chose to stay on my agreed leave, but informed my employer of my intention to return to work after three months. However, I requested to go to a suitable alternative role on another site contract, which my employer agreed to and also said would be good as I’d get a fresh start and begin a new chapter. I also indicated that I would be ok with forgoing the eight-week notice period as long as the job was right and they also agreed. So, I was put forward for interviews and finally landed a role earlier this year pending vetting that would confirm my start date. I eventually got a start date and asked my new line manager to process the end of my maternity leave so I could start full time when the role was supposed to begin. I started the role, but they said in this new site contract I have 20 days annual leave for 2015/16 tax year, as opposed to the 25 days I had on my last site contract. I also happened to be 23 weeks into my second pregnancy and informed them of this. They said they were disappointed I didn’t notify them before I was offered the role and the manager even made comments that she thought she saw me drinking alcohol at a work function. They didn’t update payroll to cease my maternity leave even though my yearly salary, unit number and site location reflect the new role. So, I had to urgently request payroll to do a Bacs payment to ensure I got paid as a FTE from when I started the job. I think I was underpaid and I’m concerned about the annual leave entitlement for the next tax year as it’s not the same. Also, will my new SMP be affected by the inaccurate payment I received during my qualifying period?

Maternity Notice letter

Close-up Of A Woman's Hand Filling Maternity Leave Form Holding Pen Over Desk

Firstly, I’m sorry for your loss.

There seem to be a number of issues here, so it’s probably easier for me to bullet point them:

– Annual leave

It appears as though you are still an employee of the same company and it is just your location of work and role has changed.  As a result, the terms and conditions set out in your original contract of employment should apply.  You would need to agree to any changes of your contract, and therefore you will need to raise this with your employer and explain that your original entitlement of 25 days’ annual leave should be maintained. In the event it is not, you could raise a grievance.  You could also issue proceedings because of the company breaching your contract of employment, but you would not be suffering any financial loss so compensation would not be paid.  Your claim would be more related to constructive dismissal where the trust and confidence you have in your employer is extinguished as a result of this breach of contract.  Constructive dismissal means you would need to resign and issue proceedings in an Employment Tribunal; you are cutting off your income stream so of course you should think carefully and take legal advice before going down this route.

– Discriminatory comments

Just because you are pregnant does not mean that you should be held back from other roles.  If you are treated less favourably than others because you are pregnant, then you are being discriminated against and you should raise this with HR as a grievance. As a pregnant woman, you are protected against discriminatory conduct.  You can issue proceedings in an Employment Tribunal for this whilst remaining in employment.  I would suggest exhausting the internal processes before any such proceedings are issued, however.

– Underpayment

It would be sensible to ask HR for a breakdown of the payments made to ascertain if any money is owed to you.  If you feel there are any discrepancies, you should raise a grievance and could issue proceedings in the County Court for this breach of contract i.e. unlawful deductions from your wages.  You could add this to any Employment Tribunal proceedings in the event your contract is terminated (either by you or the company).

– Statutory maternity pay

This area is quite complicated.  Broadly, the earnings taken into account for monthly-paid employees are those set out on the last two pay slips before the end of the qualifying week (which is the 15th week before the baby is due). For weekly-paid employees, the last eight pay slips are taken into account.  It therefore appears that the incorrect payment in February may affect your statutory maternity pay.  I would suggest speaking to HR about this and ensuring their mistake does not affect your maternity pay.

I hope this helps, and I wish you the very best for your pregnancy.

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