Can I be the only one excluded from a pay rise if I am on maternity leave?

I am currently on maternity leave. Recently, my team members received a pay rise, and I was the only one excluded from this adjustment. When I inquired with HR, I was informed that pay corrections could be the result of job description changes or promotions. However, to my knowledge, there haven’t been any such changes within the team. Given this situation, I am curious to know if I have a valid claim regarding the pay discrepancy and, if so, when would be an appropriate time to pursue such a claim.

notepad with "I'm on maternity leave" written

 

Whilst on maternity leave, an employee’s terms and conditions continue as normal. The only exception is that they do not receive remuneration. This means that if a pay increase is awarded ordinarily at a time when the employee is on maternity leave, that should still happen. A pay increase during maternity leave may potentially affect the maternity pay entitlement, and the employer is required to recalculate and pay a further sum if this is required.

You have explained that everyone in your team was awarded a pay increase, except you, whilst you were on maternity leave. Your employer has justified this by saying pay increases could be associated with job description changes or promotions and advised that they are doing annual pay reviews later this year. You are, however, unaware of any such changes to job descriptions or promotions within the team.

Treating an employee differently because you are on maternity leave is potentially discriminatory on grounds of sex and/or maternity. In this case, if the business decided not to award you a pay rise because you were on maternity leave, that could in itself constitute discriminatory treatment. In addition, you could potentially also argue their continued failure to award that pay rise with any associated increase in redundancy pay could be a continuing unlawful deduction of wages and ongoing act of discrimination, provided that your maternity leave was the reason for their decision.

It may be that there is a good explanation for the situation, for example, that everyone else has genuinely been promoted or taken on additional duties, but then we have to question why you were omitted from those conversations and/or ignored for a promotion. If the reason is because you are on maternity leave, that could also be discriminatory.

I recommend you raise a formal grievance about this, asking the business to confirm why everyone else was given a pay increase and you were omitted from any discussions about pay increase. If a pay increase ought to have been awarded to you, then they should be recalculating your maternity pay and retrospectively awarding it. The employment tribunal has strict deadlines for bringing a claim which is three months less one day of the act complained of. It appears the act in this case is the failure to award you a pay increase at the same time as your colleagues, but you might be able to argue there is a continuing failure and unlawful deduction of wages, which therefore means the time limit runs from the most recent failure to pay you the updated pay. It is best, however, to ensure that you submit a claim as early as possible rather than face the very real risk that it is dismissed because it was submitted outside the permitted timeframe.

Remember also that you can submit a claim for discrimination whilst still employed, although it may affect the working relationship. You must go through early conciliation with ACAS first before submitting your claim. The deadline for submitting a claim can be extended in some very exceptional situations but an employer will normally resist any attempt to do so.

*Maria Hoeritzauer is a Partner at Crossland Employment Solicitors in Abingdon.



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