Shortfall in pay during qualifying period for SMP: ask the expert

I understand from your email that you are pregnant and that you have been suffering from symphysis pubis dysfunction (SPD). You have been working from home since the summer but your employer has now decided that they need someone in the office so you have been forced to take time off sick and have been on SSP since earlier this year. I understand that your employer paid you early a week before Christmas but did not include your holiday pay in this pay. Your employer has confirmed that it would pay this to you at the end of February.

Although you have not provided any dates, I understand that your “relevant period” for statutory maternity pay purposes was the 8 weeks including December. You queried whether your maternity pay would be based on 7 weeks rather than 8 weeks, given that your employer failed to pay you for one of the weeks during your relevant period.

Entitlement to SMP and the rate payable depend on your normal weekly earnings, which are calculated as a weekly average of your total gross earnings during the relevant period. “Earnings” are calculated gross and include anything that is treated as earnings for national insurance purposes. This includes holiday pay during the relevant period. Your holiday pay is a legal entitlement. This relates to one of the weeks during your relevant period and therefore should be included in your SMP calculation. Rather than leaving this matter uncertain, I would advise you to contact your employer in writing and state that your holiday pay is a legal entitlement and that as this relates to a week within your relevant period for SMP purposes, you would like confirmation that this will be included in your SMP calculation.

I understand that you are not querying your employer’s decision to require someone to work in the office, meaning that you have been forced to take time off sick, receiving SSP only. Depending on its reasons for this decision, your employer’s actions could constitute pregnancy/maternity discrimination. It is unlawful for an employer to discriminate against you by treating you unfavourably during the protected period (from the beginning of pregnancy to the end of maternity leave) because of your pregnancy or because of an illness you have suffered as a result of your pregnancy. Given that your employer managed with you working from home for five months, I would query its rationale for now needing someone in the office. As stated, based on the information you have submitted, this could constitute pregnancy/maternity discrimination and you could submit a claim to an Employment Tribunal along these lines within three months of your employer’s discriminatory act. If you are concerned about your employer’s actions, I would, however, advise you to submit a written grievance in the first instance. Please note that you would also need to go through the Acas early conciliation procedures before submitting a claim.

If you would like to discuss this matter further, please contact Tracey Guest on 0161 975 3823.

Helen Frankland helped in the preparation of this answer.

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