Maternity leave and TUPE. Who’s responsible for paying?

I am an employer with a pregnant employee who starts her maternity leave in February 2016. However, my business will be relocating in early March and the current business will be taken over by a new company. Normally all staff would be employed (Tupe) by the new operators of the business. Obviously we wish to treat our employee fairly as she is a valued member of our team. Who would be liable for her maternity pay?

I note from your question that you are an employer and your business will be taken over by a new company in early March 2016 and all your staff will be transferred under the TUPE regulations to the new operators of the business. Assuming that the TUPE regulations definitely apply to your business takeover situation, your employees will automatically become employees of the incoming employer at the date of transfer. Those employees should continue to enjoy the same terms and conditions of employment under the incoming employer as they did with you.

Under the TUPE regulations, you are obliged to provide information about transferring employees to the incoming employer. This is known as Employee Liability Information. In many cases the incoming employer will often seek additional information when considering a transfer, and this is called due diligence. As part of the due diligence process the new employer may seek information from you about issues such as staff maternity pay entitlements. This is because under the TUPE process, the incoming employer inherits the employer’s obligations in respect of contractual pay and benefits.

Again assuming that the pregnant employee is transferred under the TUPE regulations to the incoming employer, they will be liable to pay her maternity pay from the date of transfer, provided that the employee in question satisfies all the qualifying conditions for SMP.

Should you require any further guidance on the above points then please do not hesitate to contact Tracey Guest on 0161 975 3823.

*Helen Frankland assisted in answering this question.

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