Maternity and employee not paying NI

mark-79

Hello all,
There's a lot of detail to this so I'll try to keep it short and add to it if anyone feels they can offer advice.
My partner works for a small business with a private owner and she's had a history of problems getting wage slips out of them. We recently got to the point in her pregnancy where she handed over the MatB form and let the owner know when she wanted to start maternity leave for which she should be entitled to SMP. That's when he dropped the bombshell that he's not been paying her NI.
Now the interesting bit is that he is currently promising to pay the maternity pay out of his own pocket but we've obviously got lots of concerns about the position that puts us in legally.

I think my biggest question right now is how would we fare trying to get maternity allowance from the job centre without those wage slips? I'm assuming they'll had to investigate the entire affair to determine whether my partner is eligible. I'm worried if that happens we might end up paying the missed NI and still not getting anything back !

Any advice gratefully received.

stazi

If the E/R does not pay any SMP due, and also pay over the NIC to HMRC, report him to HMRC. HMRC are responsible for both SMP and for NIC.

Now that you know that no NIC has been paid over to HMRC, if your partner fails to tell them, she could be treated as a 'negligent employee'.

JCP will not accept a MA claim until the SMP liability has been decided. If the E/R fails to pay the SMP/goes bust, HMRC becomes responsible for paying any SMP due.

DaisyFlower

You may not qualify for the maternity grant, if you work and your partner part time you may well be over the income limit for the grant as its mainly for people on benefits.

mark-79

Thanks stazi,
The way I see it right now is that if we report him we could have an extended fight to prove my GF was eligible for SMP or MA since we don't have wageslips and that may not get us anywhere.
In contrast if we act dumb and only report him if he doesn't pay, from what I can tell the penalty for not declaring income will likely be to make up the outstanding debt and maybe an additional percentage. With the mitigating circumstances (pregnant, stressed girlfriend and really old wage slips that backup our belief she was being deducted correctly) the penalty might not even come to us.
I hate to contemplate this as we're otherwise entirely above board but being honest could potentially leave us out of pocket through no fault of our own!

My wage is pretty good so it's tempting to take the hit and report him on the off chance he's hiding something else they can screw him for properly. My GF just doesn't want the stress and tbh, I don't see us gaining anything but a largely barren moral high ground.

Mark

mark-79

DaisyFlower,
I believe we would be eligible for Maternity Allowance if the employer gave a legitimate reason for not paying SMP (other than being a robbing ba****d of course). Based on what Stazi has said I don't think it would come to that 'cos we'd still be claiming for SMP, just from HMRC instead of the employer. The real issue is whether we can prove her entitlement because we don't have recent wage slips.

Moral of the story boys and girls, Always get the bloody wage slips unless you already know you're bent

DaisyFlower

Apologies, mis-read MA as the maternity grant.

Perhaps a visit to the job centre is a good idea, MA is based on NI contributions over a set period - maybe they can advise how you go about proving she did not know these were being paid. I assume she wasnt being paid in cash?

stazi

DaisyFlower

As I have said, this is not an issue for JCP,and you cannot now just walk into a JC. JCP will not accept an MA claim whilst someone may have SMP entitlement. HMRC are responsible for NIC and the SMP/SSP schemes.