Maternity Pay

[thephoenix]

Would just a liitle clarification please from anyone who is conversant with the maternity pay structure :rolleyes:

A friend has just been told she is not entitled to maternity pay (after telling her verbally she would be) 3 weeks before she is due.

She finished for maternity last Friday.

I don't have her contract of employment yet, so for any probable statutory or contractual maternity pay from her employer will have to wait.

But was looking at SMP (Statutory Maternity Pay) and it states:

To qualify for Statutory Maternity Pay you must have been:

• employed by the same employer without a break for at least 26 weeks into the 15th week before the week your baby is due
• earning an average of at least £87 a week (before tax)

Can anyone clarify the bold type above. I reckon it means you must be in employment with same employer for a period of 41 weeks before the week your baby is due. If this is correct then she should be entiled as she has been in employment with the same company since March 9th 2007, at total of 48 weeks.

Any comments would be appreciated as she is now worrying.

[Paule]

Re: Maternity Pay

It means that when she was (approx) 25weeks preganant she must have been working there for at least 26 weeks.

ie. if she was due today, she must have started work for the company 41 weeks ago (Marchish 07)

[Paule]

Re: Maternity Pay

What is her due Date? and they will also base it on her actual pay days as well.

[thephoenix]

Re: Maternity Pay

It means that when she was (approx) 25weeks preganant she must have been working there for at least 26 weeks.

ie. if she was due today, she must have started work for the company 41 weeks ago (Marchish 07)

So in that case she should be entitled.
Sooo 2nd of November ish she would of been 25 weeks pregnant.
26 weeks prior to that would be 4th May.

She started employment 9th March....she should qualify. Hmmmmmmm
Maybe they should get a new abacus


DUE DATE 15TH FEB

[Paule]

Re: Maternity Pay

Couple of questions
Did she give a Maternity Leave Date?
Did she give 28 days notice of Maternity Leave?

[Paule]

Re: Maternity Pay

Go through this calculator with her

It for companies to use to decide entitlement

HM Revenue and Customs: SMP calculator

[TANZARELLI]

Re: Maternity Pay

http://tiger.direct.gov.uk/cgi-bin/maternity.cgi

Maternity rights and responsibilities

[stevokenevo]

Re: Maternity Pay

You could also try ACAS for some advice - Acas - Home

As a matter of fact, one of my best friends works for acas and would be more than willing to help/advise. PM if you want his direct email address, he will tell you exactly where your friend stands AND whats she's entitled to.

[Paule]

Re: Maternity Pay

she has been in employment with the same company since March 9th 2007,

Based on her due datre, she would have needed to start employment before Monday 12th, but if her first actual paydate wasnt until the Friday 16th, this could be where they have decided she is not entitled to it.

[thephoenix]

Re: Maternity Pay

The plot thickens
She just told me she was working from March 9th through an agency and then as a permanent employee from June.
She was originally told by employer they will take employment from 9th March and she would qualify, after researching their own employment handbook.

Now they say she is 4 weeks out from qualifying, so it looks like they have taken the start date as june maybe.
It may be just lack of communication between management, who originally told her she would qualify and whoever worked out her entitlement.

She gonna try get copy of contract and the relevant parts of the handbook today or tomorrow.

PK...... yes to both

your all stars :carrot:

[Paule]

Re: Maternity Pay

If she was employed by an agency then she wasnt employed by the company, and they are probably right then

[thephoenix]

Re: Maternity Pay

If she was employed by an agency then she wasnt employed by the company, and they are probably right then

Hmmmmm this is the sticking point i feel. Although they did originally agree to take her start date from March and agreed she should receive SMP.

Any good on employment law and the contractual responsibilities and obligations of agencies ??????

got headache now, need to sit down

[Guest]

Re: Maternity Pay

If she can get her employer to confirm that she was to be treated as if she had continuous employment from March then this might work, but her employers are under no legal obligation to do so. If she chose to fight it, it is entirely possible she would lose.

There was a recent judgment by the Employment Appeal Tribunal concerning the question of whether a worker can be employed by both an employment agency and by the enduser to which the agency provides the employee’s services. In Cairns v Vision Ltd it was held, on the facts, that no contract existed between the worker and the enduser.

Because of this ruling, which held that where companies use agencies to supply workers to them and where that worker has an employment contract with the agency, the courts will not usually imply a further employment relationship between the worker and enduser.

For this reason, she will not be able to claim continuous employment under the rules required in order to claim Statutory Maternity Pay unless her present employer is happy to accept her time employed by the agency as time employed with them.

However, she should look carefully at the contract she had with the agency, as there was a prior case, Dacas v Brook Street Bureau (UK) where the Court of Appeal stated that Mrs Dacas must have been employed by someone and had implied a contract of employment between the claimant and the end user, Brook Street. Distinguishing Cairn from Dacas, the Employment Appeal Tribunal noted that in the latter, there had been no express employment contract and the Court of Appeal had been compelled to imply a contract by necessity: not to do so would have left her without statutory dismissal protection.

Therefore, if she had no express employment contract from the agency when she began in March, it may be possible to imply, as in Dacas v Brook Street Bureau (UK), that her contract was with her present employer all along.

If this can be shown, then she may well qualify for SMP.

[thephoenix]

Re: Maternity Pay

If she can get her employer to confirm that she was to be treated as if she had continuous employment from March then this might work, but her employers are under no legal obligation to do so. If she chose to fight it, it is entirely possible she would lose.

There was a recent judgment by the Employment Appeal Tribunal concerning the question of whether a worker can be employed by both an employment agency and by the enduser to which the agency provides the employee’s services. In Cairns v Vision Ltd it was held, on the facts, that no contract existed between the worker and the enduser.

Because of this ruling, which held that where companies use agencies to supply workers to them and where that worker has an employment contract with the agency, the courts will not usually imply a further employment relationship between the worker and enduser.

For this reason, she will not be able to claim continuous employment under the rules required in order to claim Statutory Maternity Pay unless her present employer is happy to accept her time employed by the agency as time employed with them.

However, she should look carefully at the contract she had with the agency, as there was a prior case, Dacas v Brook Street Bureau (UK) where the Court of Appeal stated that Mrs Dacas must have been employed by someone and had implied a contract of employment between the claimant and the end user, Brook Street. Distinguishing Cairn from Dacas, the Employment Appeal Tribunal noted that in the latter, there had been no express employment contract and the Court of Appeal had been compelled to imply a contract by necessity: not to do so would have left her without statutory dismissal protection.

Therefore, if she had no express employment contract from the agency when she began in March, it may be possible to imply, as in Dacas v Brook Street Bureau (UK), that her contract was with her present employer all along.

If this can be shown, then she may well qualify for SMP.

Blimey Cetelco..... you don't like leaving any stone unturned :judge::bud:

She'll have to do some digging for any contract from the agency. If she has not got one and the agency will not provide her with a copy, I guess a DPA is in order.

[Guest]

Re: Maternity Pay

If she does not have one, then that is to her benefit as she may then be able to claim that her employment must have been with the company to whom the agency provided her services.

It may be enough to have her present employer accept that and if they do, she will qualify for SMP, based on your calculation in post #1