Maternity pay if I am on secondment and likely to change jobs

I am currently on a part-time secondment to job A & temporarily reduced my hours to part time in job B (so full-time equivalent for both jobs combined). Both are for the same local authority. Where do I stand with getting pregnant? My secondment is due to end in a few months so I would return full time back to job B. However, my managers in job A (secondment) strongly believe there will be a job for me at the end. If, for example, I get pregnant, what happens with maternity pay if I take on the new permanent job A in a few months’ time and then after maternity leave I do not return to job B? Would I have to pay back any maternity pay if they are both under the same local authority employer?

Statutory Maternity Pay

 

I understand that you are currently on part-time secondment to another role within the same local authority. You still carry out your original role and therefore carry out both roles concurrently on a part-time basis. You would like to know the position with respect to maternity pay if you take up the secondment role on a permanent basis, with a view to not returning to your original role after maternity leave.

The starting point is whether you satisfy the qualifying criteria to receive maternity pay, be it statutory or contractual. Based on your query, I assume that you do and therefore will not go into much detail on the subject. Briefly speaking, an employee is entitled to statutory maternity pay (“SMP”) if she is continuously employed for at least 26 weeks by the end of the week which is 15 weeks before the baby is due. She must still be pregnant 11 weeks before the start of the week of the expected due date, not earn below £120 a week and comply with certain notice provisions. If the employer operates an enhanced contractual maternity scheme, there may also be other requirements that an employee has to satisfy in order to benefit from the scheme.

Assuming that you qualify for maternity pay (be it statutory or contractual), the next question of importance would be who bears liability for your maternity pay in the circumstances. Generally speaking, liability for maternity pay, as with most employment rights, lies with the ‘employer’. However, the issue of who the employer is in each case can be quite complicated especially in the area of secondments. In typical secondment arrangements (where the employee is seconded full time to another employer), the matters that would be relevant in identifying who the employer is would include who retains overall and day-to-day control of the secondee, including the carrying out of disciplinary and grievance proceedings, appraisals and pay reviews. In your case (as you are doing two jobs), there are three likely possibilities:

1. That you work under two separate contracts for the same employer (i.e the local authority)

2. That you work under separate and concurrent contract with associated employers (i.e the two local authority departments you work in)

3. That you work for two different employers

Whether you are deemed to be working for the same employer, associated employers or different employers will be a question of fact, but relevant factors would include the organisational structure of the local authority, its custom and practices as well as the points discussed earlier with respect to identifying the employer.

As you are effectively carrying out two roles (assuming that you satisfy the SMP qualifying conditions in respect of each role), you will be entitled to SMP for each role. If an employee is deemed to be working under more than one contract for the same employer or under separate and concurrent contracts with associated employers, the employee is entitled to aggregate her earnings for the purposes of calculating SMP. However, this entitlement does not cover situations where the employee’s earnings from those contracts are not aggregated for National Insurance contributions purposes due to the fact that the earnings under the respective contracts are separately calculated and it is not reasonably practicable to do so. The above obviously assists part-time workers like yourself, in circumstances where the gross wages from the individual contracts fall below the £120 weekly earnings limit, allowing them to qualify for SMP in circumstances where their earnings, considered separately, would not. Please note that if both of your ‘employers’ are deemed to be associated, and your earnings have to be aggregated, then your SMP entitlement will be apportioned between your ‘employers’ in proportion to your earnings from each unless your ‘employers’ agree some other proportion.

The question of who your employer is, is also relevant to what happens if you decide to take up the secondment role on a permanent basis with a view to not returning to your original role after maternity leave. There are no statutory provisions relating to secondments. Therefore ordinary contractual principles will apply and the starting point will be the employment contract and the written secondment agreement, if any. Please check what the relevant provisions say. If the local authority is deemed to be your sole employer or where your two employers are deemed to be associated employers, then taking up the secondment role on a permanent basis should have no practical effect on your maternity pay entitlements subject to any contractual provisions. This is because the continuity of your employment is preserved, along with any corresponding employment rights.

Where it is found that your employers are not associated, taking up the secondment role on a permanent basis would mean resigning from your original job (Job B) and terminating your employment with that employer. Payment of SMP does not depend on you intending to return to Job B after maternity leave. As a result, if you qualified for SMP, you are entitled to get it and keep it, even if you do not return to your original role. The employer at Job B cannot ask you to pay back any SMP that you have received and are entitled to. Please note however that this only covers SMP and does not protect you from having to pay back any enhanced contractual maternity entitlements you have received. Your employer can require you to pay those back subject to the terms of the policy in question.

*Albert Mould assisted in answering this question.



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