If there was no formal agreement either way and you have been working these hours since...read more
I am on maternity leave and due back in April 2010. While I have been on maternity leave my department was restructured and I have no job to go back to. My employer agreed to let me take my full maternity leave, and agreed that at the end of my maternity leave I can take my accrued holiday and that they will then give me my notice of redundancy and 8 weeks’ paid notice period during which time I will look for a new job. I have just discovered that I am pregnant again, and I will be 22 weeks pregnant on the date that I am due to return to work. I have about 8 weeks’ holiday accrued so could go straight on maternity leave after taking my accrued holiday. My employer’s maternity allowance is more generous than SMP as it is calculated on my base salary not an average of my actual salary over the 8 weeks until I am 25 weeks pregnant. I therefore am trying to understand:
(1) If I am given notice of redundancy before I go on maternity leave or once I have begun my maternity leave, will I still be eligible for my employer’s maternity allowance or will I only receive SMP and how would this be paid?
(2) If I took my accrued holiday and then went straight on maternity leave does my employer have to make a payment in lieu of my notice period (i.e. 8 weeks at full pay)?
(3) If I serve some of my notice – for example in order to increase my SMP entitlement – and then go on maternity leave would I be entitled to a payment in lieu of the outstanding period of notice?
“If I am given notice of redundancy before I go on maternity leave will I still be eligible for my employers maternity allowance or will I only receive SMP and how will it be paid?”
If your employers decide to give you notice to terminate your employment on the grounds of redundancy you will be entitled to receive your full notice pay. You state that you are entitled to 8 weeks notice and so you should receive 8 weeks full pay. Your contract of employment would then terminate unless you are paid in lieu of notice.
You state that your employers have an enhanced maternity allowance (EMA). Your entitlement to EMA would depend on the terms of the policy. In order to advise in full I would need to consider the policy. I would, however, be most surprised if it stated that you would be entitled to EMA after your contract of employment has been terminated. The usual position is that you would still be entitled to receive Statutory Maternity Pay (SMP) if made redundant, provided that you have 26 weeks of continuous employment with your employer up to and including 15th week before the expected week of confinement. Your employers would still be obliged to pay you your SMP through payroll in the usual way. However, it is also possible for them to pay SMP as a lump sum on your termination date if your maternity leave has been cut short by redundancy, and I suggest that this is an issue you raise if relevant.
“Once I have begun my maternity leave, will I still be eligible for my employers maternity allowance or will I only received SMP?”
If you went on maternity leave before your employers gave you notice then you should be entitled to EMA, subject to the rules of the EMA scheme. For example, some enhanced maternity policies will only allow you to be entitled to EMA after you have been back from a previous maternity leave for a certain period. In order to advise properly as stated above, I would need to consider the EMA Policy. If you were not eligible for EMA you should be eligible for SMP provided you met the required criteria as stated above. The earliest that you could commence maternity leave would be 11th week before your EWC.
“If I took my accrued holiday and then went straight on maternity leave does my employer have to make a payment in lieu of my notice period (i.e. 8 weeks at full pay)?”
If you went on maternity leave you would receive 8 weeks notice pay at either the EMA rate or SMP rate, depending upon which rate was applicable to you. Your employers would not be obliged to pay you your full salary unless they wished to do so .
“If I serve some of my notice – for example in order to increase my SMP entitlement – and then go on maternity leave would I be entitled to a payment in lieu of the outstanding period of notice?”.
If you worked some of your notice after notice had been given by your employer and you then requested to go on maternity leave you would be entitled to receive the outstanding weeks salary due to you under the EMA or SMP whichever was applicable as you would in effect be switching into the maternity leave category.
If you decide to commence maternity leave at any stage you could always ask your employers if they would be prepared to pay you your full notice rather than at the maternity leave rate. This would be discretionary.
You mentioned that whilst you were on maternity leave your department was restructured and that you have no job to go back to. You are consequently going to be made redundant. If you could prove that you have been unfairly selected for redundancy and that your redundancy could have been avoided by offering you suitable alternative employment and/or you were selected for redundancy for a reason connected with your pregnancy you could have a claim for unfair dismissal and/or sex discrimination in the Employment Tribunal. A Tribunal may currently award compensation of up to £63,500 in terms of an unfair dismissal case. This cap is lifted in sex discrimination cases.
I hope the above clarifies your position.