please help - Statutory Maternity Pay

sen3577

My employer is not willing to pay my SMP based on the reason that my Average Weekly Earnings is £50 and this is lesser than LEL.

However as per the HMRC calculator the average weekly earnings is £200.

I was on sick leave during the months used for calculating average weekly earnings. I was paid SSP and based on my SSP, my average weekly earnings were £156. My employer later turned back and said that overpayment was done during these months which will be deducted from subsequent month's holiday pay.

My employer later mentioned that your average weekly earning is just £50 and not eligble for SMP. Is this correct..... Can an employer deny paying SMP based on overpayment reason even though I have pay slips and bank statemtents to confirm that they have paid and the money was never paid to the employer but reconciled against my subsequent month's holiday pay.

I don't work for this employer anymore. What are my rights?. I can't claim from Jobcentreplus due to my visa restrictions.

jdturk

I could be wrong but why would a company pay you SMP if you don't work for them anymore?

Also SMP can be reclaimed back so again not sure why the company would object

[Deleted User]

jdturk wrote: »

I could be wrong but why would a company pay you SMP if you don't work for them anymore?

Also SMP can be reclaimed back so again not sure why the company would object

An ex employer may stilbe liable for SMP if you worked for them for the qualifying periods. And not all employers can claim it back I found out on here not so long ago. Somthing to do with how much NI they pay?

But OP I do think they can calculate on the real pay if they have already reclaimed from you.

sen3577

Thanks for the replies. This happened more than an year back and I believed what my employer said is correct. So I went on maternity leave and after delivery I resigned.

However after checking the HMRC site recently, its been mentioned that "It is when you get paid the money that counts, not when it was actually earned.". So probably I should be eligible for SMP because,

1). money was paid
2). I have pay slips and bank statements
3) I paid tax for the money
4) I didn't paid back the over payment money later physically . it was just deducted from subsequent month's holiday pay.

Can they deny SMP considering these factors..

DX2

I thought it was £95 per week to qualify for SMP, did your employer give you a SMP1 form?

sen3577

Employer gave an SMP1 form stating that my earnings were not sufficient.

lynzpower

regardless of the payback issue, what was your salary?

chrisbur

From ............
Employer Helpbook for
Statutory Maternity Pay

http://www.hmrc.gov.uk/helpsheets/e15.pdf

page 18

"Overpayment/underpayment of
earnings made during the set period
Where an overpayment or underpayment of wages
was made within the set period, it is this overpaid or
underpaid amount that must be included in the AWE
calculation for deciding if SMP is due."

Entitlement to SMP should be on what is paid during the set period whether it is the correct payment or an incorrect payment.

sen3577

Thanks chrisbur.

It gives me confidence that I can get my SMP even with overpayment.

jdturk

ok I don't know much about these things but I thought you had 3 months to take your employers to an ET? Has that time elapsed and could someone tell me if I am right

thanks

DX2

jdturk wrote: »

ok I don't know much about these things but I thought you had 3 months to take your employers to an ET? Has that time elapsed and could someone tell me if I am right

thanks

Time limits

In most cases, you must make an Employment Tribunal application within three months of the date when the matter you are complaining about happened. This time limit can vary depending on what your claim is about.
Employment Tribunals will not usually accept claims received after the relevant time limit. Though in very exceptional circumstances they may agree to extend it. You can check the time limit for your case by calling the Employment Tribunal helpline on 08457 959 775.
http://www.direct.gov.uk/en/Employment/ResolvingWorkplaceDisputes/Employmenttribunals/DG_10028122