Turned down for OMP due to bank working, despite regular hours

My wife was working in the private sector and was placed on furlough last year then moved back to the NHS. She has been told she is not entitled to occupational maternity pay as she was working through the bank, even though she was working continuously in the same post, same hours throughout. How can she get this decision changed?

judge's gavel against a block titled employment

 

Having reviewed the maternity adoption and paternity leave provisions applicable to your wife’s employer, which are expressed to apply to staff employed under agenda for change in terms and conditions, the provisions and eligibility in relation to occupational maternity pay is that the employee must have 12 months continuous service at the beginning of the 11th week before the expected week of childbirth.

The key here will be to examine in detail the employee’s status during the period March 2020 to date. This is a complex area of law and very much depends on the facts of each individual case. Ultimately, the labels attached by the parties to the working arrangement are not necessarily determinative of employment status and if the matter came before an Employment Tribunal to determine employment status it would look at a number of factors to establish the true nature of the working relationship. In order to determine the employment status of a bank worker it will be necessary to identify what the actual legal obligations of the parties were according to the terms of their agreement. This will require an examination of the reality of the relationship, the context of the relationship and all the relevant evidence.

The factors that generally would be taken into account in considering whether the relationship is that of employee is whether the arrangement between the parties requires personal service from the individual (“personal service”), whether the business or organisation to whom the services are given by the individual has a sufficient degree of control over the individual (“control”), whether there is mutuality of obligation in respect of the provision of work to the individual and the obligation to undertake work when provided (“mutuality of obligation”) and that the other provisions of the contract are consistent with a contract of service.

There is some case law involving bank workers in the care sector. An example of the limited use of labels in a casual working relationship can be found in Pulse Healthcare v Care Watch Care Services Ltd and others (2012) UK EAT 0123/12. In that case the EAT held that care workers who were part of a team of bank staff were employees and that the necessary requirement from mutual obligations was present, despite the contract being described as a “zero hours contract” which provided that the employer was not required to offer any work.

However, each individual case is determined on its own facts. It is not possible to give a definitive view on status without a full examination of both the documents and the facts. Given the complexity of the law in this area we would recommend that you seek full substantive legal advice, providing to your legal advisors a full copy of the initial bank workers contract, the new contract entered into in February 2021 and any other relevant documentation, including the correspondence that you have had confirming that the organisation do not recognise the continuous service, whilst undertaking bank work.

In answer to your question how you would try to have this decision changed, we would recommend that in the first instance you submit a formal grievance following the organisation’s grievance policy.

*Sarah Turner assisted in answering this question.



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