In theory someone who does repay enhanced maternity pay would appear to lose out on tax...read more
I am a teacher working 3 days per week after a successful application for part-time working which started in January this year after maternity leave. Two weeks before I returned I was told that the situation was a temporary change to contract until the end of July this year. I have accepted this and it means that from July 31st I revert back to a full-time permanent contract. I returned to work pregnant once again in January and am due to go on maternity leave at the end of June. My question is does my contract reverting to full-time permanent a month into my maternity leave affect any subsequent maternity pay?
I understand that you are a teacher working three days per week on a temporary basis. However, you have agreed with your employer that contract will change back to full time at the end of July this year. You are, however, due to commence a period of maternity leave at the end of June this year.
You have asked whether your change in contract/pay will affect your Statutory Maternity Pay (SMP) and Company maternity pay.
The agreed change in your contractual terms should take effect regardless of the fact that you are absent on maternity leave. This means that your hours and pay should change in accordance with the arrangements you have agreed with your employer.
In terms of pay, the position isn’t entirely clear, although you could liken your situation to one where a pay rise is awarded. SMP is based on your average earnings during an eight-week reference period. However, where a pay rise is awarded after the start of the eight-week reference period but before the end of the statutory maternity leave period, this must be taken into account in calculating SMP. Therefore, SMP must be calculated as though the pay rise had taken effect at the start of the reference period. Employers therefore generally have two options. Firstly, your employer could include your increase pay in the calculation of your SMP from the start. Alternatively, it could recalculate your SMP when your increased hours/pay actually start. In previous weeks, your employer would need to top up your SMP with a lump sum payment.
Whether or not your enhanced contractual maternity pay should be increased in accordance with your new hours/pay will depend on the terms of your employer’s policy in this regard. It is certainly worth arguing that your enhanced contractual maternity pay should also be based on your increased hours/pay throughout the entire of your maternity leave period.
If your employer fails to pay SMP accurately or in fact contractual maternity pay, I would suggest that you submit a grievance to your employer straight away. Failure to pay could give you a unlawful deduction from wages claim and potentially a breach of contract claim. Furthermore, you may also have a claim for pregnancy/maternity leave discrimination. Any such claims must be brought within three months of the deduction (or the last of a series of deductions) and within three months of the discriminatory act in the case of pregnancy/maternity discrimination. You must also go through the ACAS Pre-conciliation process before submitting such a claim.
Should you have any further queries please do not hesitate to contact Tracey Guest on 0161 672 1425.
*Helen Frankland assisted in answering this question.