Temporary working and maternity leave: ask the expert

I work for a temporary agency within a big institution. I have been working there part-time – two days a week – for the last two years and have just found out I am pregnant. Do I qualify for maternity pay? What rights do I have?

 

You have explained that you work for a  Temporary Employment Service, which I understand provides temporary cover for the institution you work for. I understand that you have been working as a temp and this means that you are available on an on call basis, so that you are contacted when work becomes available, but there is no obligation on you to accept the work. The employment rights that you are entitled to are dependent upon whether you are an employee or not.

An employee has a different status for income tax and national insurance purposes than a self-employed person, and has important statutory rights accruing from the relationship of employment, for example, the right to protection from unfair dismissal and the right to a redundancy payment etc. These statutory rights do not apply to a self-employed person.

The first place to start to determine whether or not you are an employee with full employment rights is the contract that is in place between the institution and yourself and to see what it says in that contract about your employment status. There are also other factors which would be considered to decide if you are an employee, for example, are you under a duty to follow the reasonable instructions of the institution, are you provided with the necessary equipment so that you can carry out your job, do you have set contractual hours, are you paid under the PAYE system with the institution deducting income tax, do you receive holiday pay? If the answer to these questions is yes, this assists to demonstrate that you are an employee.

You have explained that you have worked for over 2 years for the institution. Assuming you have worked for the institution with no breaks in this time (except if you have taken a paid holiday break between assignments), this also helps to demonstate that you an employee, with employment rights.

If the above points to you being an employee, you should speak with your manager to note the same and explain why. If your manager denies that you are an employee, you should obtain further legal advice.

If you an employee, you are entitled to take 52 weeks maternity leave, regardless of your length of service, which is made up of 26 weeks ordinary maternity leave (OML) followed by 26 weeks additional maternity leave (AML).

To qualify for OML and AML you must comply with certain requirements, eg notifying your immediate manager by the end of the 15th week before your expected week of childbirth.

As an employee, you qualify for statutory maternity pay if:-

a) at the end of the 15th week before your expected week of childbirth you have completed 26 weeks continuous service and your average earnings at the relevant time exceed £95 per week and
b) you give notice to your manager of the date you wish your statutory maternity pay to begin, at least 28 days before that date, or if that is not reasonably practicable, as soon as is reasonably practicable.

NB. If you are not entitled to statutory maternity pay, you may be entitled to maternity allowance. You should pursue this with your local benefits agency.

I understand that you work part time, two days a week – this makes no difference to my advice set out above.




Comments [9]

  • Loveness ndlovu says:

    Hie I’m i got my full time job &part time job agency &now I’m on maternity leave I’m getting from my full time job. JUST want to know if i am qualifying to get paid from agency or not, i signed the contract it says temporary work

    Thanks plz let me know

    • Mandy Garner

      Mandy Garner says:

      Do you mean in terms of maternity pay? It would depend on whether you are employed directly by the agency and qualify for SMP – ie you had to have been working there since before you got pregnant and to still have been working there till the end of the 16th week of your pregnancy and to have earned an average of £112 a week in the eight weeks leading up to the end of the 26th week of pregnancy. If not you would not qualify for any other payment as you cannot receive SMP and MA at the same time.

    • Comfort says:

      I’m pregnant and I have worked for the company 8yrs and since this year January I have been working 12 hours per week. My question is I’m l eligible to maternity allowance

      • Mandy Garner

        Mandy Garner says:

        Hi, To be eligible for MA you need to have worked for 26 weeks in the 66 weeks before the birth of your child and you need to have earned at least 30 pounds a week in any 13 of the 66 weeks. I am assuming you are an employee of your company. You should apply via your local JobCentre Plus.

  • Anna says:

    Hi,
    I am German and moved to England in January 2015. I have worked since then and have paid NI apart from 2 months (September and October) when I was looking for a new job. I am now working as a full time Maternity Cover until July or October 2016.
    My question is: Am I entitled to SMP or MA? I am unsure because first of all I am an EEA Citizen and not UK. And I have just started my new temporary work. I would have gotten pregnant after I started the new job.
    Thanks in advance!

  • Renne Jacob says:

    Interesting Article,
    I live in the US. I’m planning on taking as long as I can with the vacation time I’ve saved up (looks like it’ll be 3-4 weeks).

    As a plot twist, if all goes well with HR, I may end up working from home 2 days a week while on maternity leave and taking closer to 5-6 weeks. With my short term disability, I’m actually eligible for up to 12 weeks at 60% salary if needed, but alas, I don’t think the bank will let me only pay 60% of the mortgage. Waa waa!

  • Anonymous says:

    Hi I found out that I was pregnant 2 month after I started my new one year fixed term job. I'm now 20 week pregnant and I just gave my employer the certificate from my gp. My hr manager have recently told me that because of my short length of work at the company I might not be entitled to the statutory pay.
    I will be with the company 26 weeks on February and my baby is due the 6th of May 2015.
    I'm very confused on what will be my next step, because from the previous reply you gives the other people it looks like I might be entitled.
    Thank in advance.

    Editor: If you got pregnant after you started the job and are still there by the end of the 26th week of your pregnancy and earned an average of at least £111 in the eight weeks leading up to the 26th week, you will get SMP, whatever happens next. If not, you can apply for Maternity Allowance.

  • Anonymous says:

    Hi I am currently on maternity leave from my full time local government job. I also am on a casual register with another local government. I have no fixed hours with this job and do not get benifits such as pensions holidays etc. My question is, is … Can I work the casual job whilst on maternity leave?

    Editor: If you have been doing it from before the 26th week of pregnancy it will not affect your SMP if you continue during maternity leave – see http://maternityaction.org.uk/sitebuildercontent/sitebuilderfiles/morethanonejob.pdf

  • Anonymous says:

    Hi I have taken on a part time beauty therapist for maternity cover for 10 months. She has worked for me now for 3 months and now herself is pregnant! She has no contract!! She thinks she is intitled to maternity pay. Please could you help! As I can't see how this can be.

    Editor: To qualify for SMP she would have to have got pregnant after she started and to still be in her role at the end of the 26th week of her pregnancy, plus to be earning at least an average of £111 in the eight weeks leading up to her 26th week of pregnancy. You can reclaim much of the costs of SMP from the government. – see https://www.gov.uk/employers-maternity-pay-leave/help-with-statutory-pay


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