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I began maternity leave on last August after being promoted and receiving a pay rise effective from October. My employer is currently paying me maternity pay based on my previous salary as they say they have no contractual obligation to pay my new salary as this was not effective when my leave began and OMP is a discretionary payment. Is this correct?
SMP is paid for 39 weeks in total. The first 6 weeks is paid at 90% of your salary, but this is based on your average weekly earnings over a period of at least 8 weeks up to and including the last pay day before the end of the 15th week before the baby’s due date. So if you get an increase within 15 weeks of the birth, it doesn’t make a difference.
After the first 6 weeks, SMP is paid at a flat rate anyway, so again any pay rise won’t affect this. So I’m afraid that your employers are right when they say that your maternity pay is based on your previous salary.
SMP is not a discretionary payment, though, it is a statutory entitlement – i.e. a legal obligation rather than a contractual one. So in that your employers’ view is incorrect. However, if your query is referring to an enhanced provision at the company’s discretion – i.e. a payment they make that is above & beyond the statutory entitlements, such as full pay for a period of time while on maternity leave – then there is no legal bind on them & they can choose to pay it how they like.
That said, for any enhanced provisions, you should check their relevant policy to see what it says about pay rises during maternity leave, & also to see if the policy is contractual (ie forms part of your terms & conditions of employment) or at the employers’ discretion. Although they have the right to pay an enhanced provision how they like, they should be consistent in applying the policy.