Maternity Pay - Advice

tigtag02

smk77 wrote: »

Apologies for hijacking the thread but my wife and I are trying to avoid getting into a similar situation.

My wife is on a temporary contract with our council and has been for 18 months. She is 27 weeks pregnant and will be going on maternity leave with full entitlement in March. She has been told that she *may* be required to pay back the non-SMP when her contract ends. At the time her contract ends she will be only getting the SMP and will have been working in the same job for over 2 years.

Now the complicated bit...

The role that my wife does WILL be made into a permanent job at some point - most likely whilst she is off. My wife wants to return to work and take the permanent position and her line manager wants her to do it. However, what my wife wants and what the line manager wants will not guarantee anything. If the permanent role needs someone whilst my wife is on maternity then they'll have to employ someone else instead as she won't be able to go for it.

Most of what I have read online states what has been mentioned above by others. If a woman decides not to return to work then they must pay back what is asked for. However, there is no mention on the Internet of the ending of temp contracts whilst on maternity pay.

I think it's unfair for the council to pay the money and then ask for it back knowing that the contract was temp in the first place.

Any ideas?

This is pretty complicated. Common sense would tell me no, she shouldn't have to but hey, we are talking about the council

I would give ACAS a ring and see what they say

smk77

tigtag02 wrote: »

This is pretty complicated. Common sense would tell me no, she shouldn't have to but hey, we are talking about the council

I would give ACAS a ring and see what they say

Thanks for the quick response.

The annoying thing is that this position should have been made permanent last summer but because some policy hasn't yet been agreed she has been kept hanging on. She has had further training for the role and her supervisor and line manager talk about "her" job when she is made permanent. The problem is the HR dept and the union say that the job should be advertised externally. Because my wife has been doing the job with no complaints for 2 years and knows specific things about it she'd almost certainly get the job if it was advertised externally. However, if this happens she may not be able to apply for "her" job because of the maternity.

tigtag02

smk77 wrote: »

Thanks for the quick response.

smk77 wrote: »

The problem is the HR dept and the union say that the job should be advertised externally.

This is true ~ However, they aren't the ones who chose the candidate for the roll are they ;)

smk77 wrote: »

However, if this happens she may not be able to apply for "her" job because of the maternity.

If they dont allow her to apply whilst she is on maternity then they are treading on very dodgy ground.

If all goes well, her application, interview & offer should all just be a formality

Good luck with everything
tigtag
x

smk77

tigtag02 wrote: »

If they dont allow her to apply whilst she is on maternity then they are treading on very dodgy ground.

That's what I thought. However, it puts them in a very difficult situation. If they don't employ her then there is likely a sex discrimination situation because it's was her job as far as her line manager is concerned. If they do employ her but she can't do the job for a good few months then other candidates would question the fairness of the interview process as my wife was obviously the only real candidate.

They've also told her what her holiday entitlement is for next year (from August 08 - contract ends July 08) which is another indication that the job is hers.

I am sure it'll all be fine and that she will be made permanent. It just puts an additional strains on our finances if we can't be sure of the non-SMP part of the maternity pay.

Thanks for all your advice!

DaisyFlower

I dont think you would have a case for sex discrimination, its not technically her job so they are free to advertise it and choose the best applicant for the job.

She can, of course, apply for the job as can anybody. Whether or not they are willing to wait for her to start work again is another matter.

If you are worried re the SMP and additional payments, talk to HR. You could always save the "extra" and then if you do have to repay you have the money ready. If not, then its a nice nest egg for the baby.

smk77

DaisyFlower wrote: »

I dont think you would have a case for sex discrimination, its not technically her job so they are free to advertise it and choose the best applicant for the job.

You are probably right but I guess the arguement would be that she was the best candidate for the job as she has all the training for the role and plenty of experience. The line manager has made it perfectly clear that he expects her to continue with the role afterwards.

DaisyFlower wrote: »

If you are worried re the SMP and additional payments, talk to HR. You could always save the "extra" and then if you do have to repay you have the money ready. If not, then its a nice nest egg for the baby.

Yes. That's the best plan. I think that they key thing is the wording of the maternity policy which I will check tonight. If it says:

"If you do not return to work" then that's unclear.

"If you choose not to return to work" then she shouldn't pay as it was not her decision so didn't choose.

smk77

Just a quick update:

I checked the wording of the maternity policy and it goes like this:

"If you intend on returning to work you..." and proceeds to explain about getting ocupational maternity allowance.

"If you do not intend returning to work you..." and proceeds to explain about getting 6 weeks at 9/10ths followed by SMP.

However, the letter my wife has received from HR explaining her entitlement adds a section explaining that if her contract is not extended then she may have to pay it back (the occupational maternity part). My wife made it clear that she intends on returning to work when she contacted HR.

If I understand the following correctly taken from http://www.personneltoday.com/articles/2006/05/16/35369/maternity-leave.html

If an employee's fixed-term contract comes to an end while she is on maternity leave, there is no express obligation on the employer to re-employ her. If it does not, the key question will be why the contract was not renewed. If the reason for this non-renewal is related to the employee's pregnancy or the fact that she is on maternity leave, the dismissal will be automatically unfair under the Employment Rights Act 1996, section 99. Under this section, there is no need for the employee to have one year's qualifying service to present her claim for unfair dismissal. It is also likely that an employee in such a situation would include a claim for sex discrimination.

...they must make the job permanent (employing her or someone else) before her contract expires or extend her contract. If they don't extend the contract and haven't made the job permanent (but someone is covering for her) then she has been dismissed. If they do extend the contract then the condition set out in the letter she got from HR would not be applicable.

Also, is this condition fair given the fact that she has the same rights as permanent members of staff? Adding this condition treats her differently.

No doubt this thinking and investigating will come to nothing but just want to know where we stand in various potential situations.

Thanks