I began working for a small business in December and found out I was pregnant in January. My employer was fine about my maternity leave, until I brought up holiday pay. He said he would make me redundant “because you are going on maternity leave.” He said I have no legal rights as I have not worked there for a year. Is that so?
Your question touches on several issues: rights to redundancy payments, rights to maternity payments, rights to accrue annual leave while on maternity leave, right to be treated equally.
1) Redundancy Payment
To be eligible for a redundancy payment, an employee needs to have been employed for at least 2 years. Since you have only been employed there since December 2008, you would not have any rights to ask for a redundnacy payment.
2) Right to Maternity Pay
An employee can claim Statutory Maternity Pay (SMP) as long as the following conditions are met:
– employed by the same employer continuously for at least 26 weeks into the 15th week before the week your baby is due
– earning an average of at least £95 a week (before tax)
If you have the right to receive SMP, you will get it even if you are made redundant.
I do not have your exact employment start date or due date for your baby, but I do not think that you will be eligible to claim SMP due to insufficient service with this employer. If you are not eligible for SMP, you might get Maternity Allowance (MA) if you:
– have been employed or self-employed for at least 26 of the 66 weeks before the week your baby was due (a part week counts as a full week)
– earned an average of £30 over any 13 of those 66 weeks
So you might be able to claim this. For information on how to claim it , go to the website www.directgov.co.uk and then Employment/Work & Families/Pregnancy & Maternity Rights or ask the Inland Revenue.
3) Right to paid annual leave while on maternity leave
You are correct that women on maternity leave accrue annual leave which if denied would breach the Working Time Directive. This can be taken either before Maternity leave starts or tagged on at the end, thus extending the maternity leave.
4) Right to be treated like other employees
In terms of your employer making you redundant because you are going on maternty leave, this is not lawful since employers should not be treating an employee who is pregnant/on maternity leave differently from other employees. By doing so this opens them up to a claim of sex discrimination for which there is no qualifying service date.
So your employer is not acting professionally or legally by saying this. I would suggest that you have another conversation with your employer and gently discuss these points. While it can be frustrating for small businesses to cover work when an employee goes on annual leave, they still need to act within the law. If this gets you nowhere you might want to talk to ACAS who provide a free,confidential phone service and get them to advise on next steps and whether you need to get legal advice.