Your employer can offset your SMP against any other contractual remuneration payable e. The same applies to all other statutory parental pay. See below for notice pay if you are on maternity or parental leave. If your employer is insolvent you can apply to the Insolvency Service for a redundancy payment, statutory notice pay, unpaid holiday pay and wages see Where to go for more help below.
I think that my employer is making me redundant to avoid paying my SMP. What can I do? If you are made redundant before the 15 th week before your expected week of childbirth you will not be able to qualify for SMP.
However, if you think that your employer made you redundant in order to avoid paying your SMP or other types of statutory parental pay you may be able to claim the pay directly from HMRC. You must do this within six months of the first day on which your SMP was due. This could include redundancy, dismissal or non-renewal of a fixed-term contract. A Maternity Allowance claim can only be backdated for three months so you may need to claim Maternity Allowance while waiting for a decision on your SMP.
For more information on maternity pay, see this. For more information see this. I am going to be made redundant during my pregnancy. You will not get SMP if you are made redundant and your employment ends before your qualifying week the 15 th week before your baby is due but you may be able to claim Maternity Allowance.
If you are made redundant and your employment ends in or after your qualifying week, you are still entitled to SMP for 39 weeks. If you are already on maternity leave and receiving SMP, your maternity leave will come to an end when your employment ends but your SMP must continue for the rest of the 39 week period.
You must also give your employer a copy of your Maternity Certificate MATB1 stating your expected week of childbirth which your midwife or GP will give you when you are about 20 weeks pregnant. Note: once you qualify for SMP you are entitled to receive it for the full 39 weeks even if your job ends during the SMP period. Once you have met these qualifying conditions you remain entitled to SAP for the 39 week period even if you are made redundant after the matching week.
If your SAP has not yet started, it will begin 14 days before the expected date of placement or the day after your job ends if later. If you are made redundant during your adoption leave and you are receiving SAP you can continue to be paid it for the remaining period unless you start a new job. Your adoption leave will end on the day your employment ends as well as any employment benefits such as occupational adoption pay unless you can negotiate this as part of a redundancy package.
For more information, see: Adoption leave and pay — rights for parents. The other parent can continue to take shared parental leave for the period booked. The mother is made redundant after the birth but can continue to receive her SMP for the 6 month period. Can I still take shared parental leave and pay if I am made redundant before or during my shared parental leave SPL? If your job ends before the start of SPL you will not be entitled to it as you must be employed up to the start of the week before your SPL starts.
If you are made redundant during your shared parental leave and you are receiving Statutory Shared Parental Pay, you can continue to be paid it for the remaining period of leave that has been booked unless you start a new job. Your shared parental leave will end on the day your employment ends as well as any employment benefits such as occupational shared parental pay unless you can negotiate this as part of a redundancy package.
The company I worked for has now closed and I have been made redundant. Am I entitled to the rest of my SMP? If your employer is insolvent or refuses to pay all or part of your SMP, HM Revenue and Customs automatically becomes liable for any outstanding SMP as well as any other statutory paternity, adoption or shared parental pay. Contact the Statutory Payments Dispute Team on The receiver or liquidator may be able to write confirming how much SMP your employer owes you.
If I am made redundant while on maternity leave, what happens to my occupational maternity pay? Your occupational maternity pay will end when your contract ends as it is a benefit provided by your employer.
However, you are entitled to continue to receive the rest of your Statutory Maternity Pay for 39 weeks. You may be able to negotiate to be paid some or all of your occupational maternity pay as part of your redundancy package. If you are unfairly selected for redundancy because of your pregnancy or maternity leave and you have lost some or all or you occupational maternity pay you can include those losses in any claims for unfair dismissal or discrimination see below.
This a complex issue and the rules are not very clear. You are entitled to receive paid statutory notice when you are on maternity or parental leave. You must also bear in mind that if your period of paid notice overlaps with your 39 week SMP or parental pay period, your employer is entitled to offset SMP or other statutory parental pay against statutory or contractual notice pay paid in respect of the same week so you will not receive both. Your employer can only offset SMP or other parental pay against contractual remuneration paid in respect of that week.
I am on maternity leave and my employer has just told me that they will have to make cutbacks. Where do I stand if I am likely to be made redundant? Your employer will have to consider the pool of employees that will be selected for redundancy. Your employer will also have to consider what selection criteria will be used and they must ensure that the selection is carried out objectively and fairly and is non-discriminatory.
For example, your employer must not include pregnancy-related sickness absence or absence on maternity leave. If your employer is planning to make more than 20 employees redundant within a period of 90 days, they should carry out a collective consultation with the union or elected representatives of the affected employees. Your employer should also consult individually with all employees who may be faced with redundancy, regardless of the number of employees to be made redundant.
If you are one of the employees affected, your employer should consult with you during your maternity leave. Failure to consult could be maternity discrimination. The consultation process should look at ways of avoiding redundancies, reducing the number of redundancies and minimising the effects of redundancy. For example, your employer could ask for volunteers for redundancy and look at redeployment or retraining opportunities.
If you are at risk of redundancy during your maternity leave, Regulation 10 of the Maternity and Parental Leave Regulations says that if there is a suitable alternative vacancy it should be offered to you as you are on maternity leave. I am on maternity leave. I have been told my job is at risk of redundancy and that I need to be interviewed for other posts. Do I have any rights? If you are made redundant during your maternity leave, regulation 10 of the Maternity and Parental Leave etc Regulations see extract below states that a woman on maternity leave must be offered a suitable alternative vacancy , if one exists, as soon as her post is at risk of redundancy.
This is because you may be about to give birth or may have been out of the workplace for some time and you would be disadvantaged in having to compete for roles. This protection also applies if you are on adoption leave or shared parental leave.
Your employer must consider whether a suitable alternative vacancy exists between the time your redundancy becomes known and the time when your maternity leave period is ended by redundancy. The terms and conditions of this new job must be not substantially less favourable than your original job. You should be given first refusal of any suitable alternative job and you should not have to attend interviews as you have priority over other workers being made redundant who are not on maternity leave.
If there is a suitable alternative role you should be offered it during your maternity leave and as soon as your employer becomes aware that your role is potentially redundant.
Your employer should not wait until you return to work you can remain on maternity leave and return to the new job when your leave ends. If your employer fails to offer you a suitable alternative vacancy under regulation 10 this may be automatic unfair dismissal. In some cases this may also be maternity discrimination. If you are offered a suitable alternative job and unreasonably refuse it, you will lose your right to redundancy pay.
During the redundancy consultation process she was invited to apply for a position in a branch in another town. She failed to apply and argued that she should have been offered the role.
The Employment Appeal Tribunal said that employers do not have to automatically increase the scores of an employee who is on maternity leave or to give set scores or maximum score as this goes beyond what is reasonably necessary to protect a woman against any disadvantage she may suffer as a result of being absent on leave. The employer interviewed both employees and offered the job to the other person, making Miss W redundant.
The Employment Appeal Tribunal EAT decided that failure to offer the role was an automatic unfair dismissal and Miss W had a right to be offered the job once the employer knew that there was a redundancy situation affecting her role. She should not have been required to engage in some form of selection process.
The EAT also said that if there are a number of posts available, a woman on maternity leave should be offered a suitable alternative vacancy but she can be considered alongside other employees for other posts. This may be a genuine redundancy situation, see the legal definition of redundancy on page 1, but you might not have been fairly selected for redundancy. Your employer has to use fair selection criteria and must not automatically choose you because you are on maternity leave. I have been made redundant but they are keeping on the employee who replaced me while I was on maternity leave.
Where do I stand? A maternity cover contract is usually a fixed-term contract under which an employer can dismiss an employee fairly by giving notice as stated in the contract. As above, this may not be a genuine redundancy situation if your job still exists and you have been made redundant or you have been selected because of your maternity leave.
I am on maternity leave and my job is going. My employer says that when I return from leave I can apply for other jobs. Your employment and maternity leave will come to an end at the end of your notice period. This means that you will only accrue benefits, such as annual leave, up to the end of your notice period. However, you remain entitled to your full Statutory Maternity Pay or Maternity Allowance even if your job comes to an end during your maternity pay period.
If there are any suitable alternative vacancies available at any time up to the end of your employment you are entitled to be offered the vacancy during your maternity leave and you are not expected to have to apply for it or attend interviews under regulation 10 of the Maternity and Parental Leave Regulations see above. A suitable alternative vacancy must be offered under a new contract that begins on the day immediately following the day on which your current contract ends.
You can still take the rest of your maternity leave. It may be an automatic unfair dismissal if your employer makes you redundant without offering any suitable alternative vacancies that are available from the point at which you are at risk of redundancy up to the end of your contract. If your redundancy is not going to take effect until after the end of your maternity leave, you will not be protected by regulation However, if your employer delayed your redundancy until after the end of your maternity leave, in order to avoid giving you alternative work, you may have a claim for automatic unfair dismissal and maternity discrimination and you should seek advice.
We cannot respond to questions sent through this form. Breadcrumbs Home Advice Holiday, sickness and leave Maternity, paternity and adoption Your employee's maternity leave, pay and other rights.
Their leave, pay, redundancy and dismissal rights Maternity leave Employees are entitled to 52 weeks' maternity leave. They have this right from the day they start the job. Changing the maternity leave start date Your employee must give you 28 days' notice if they want to change their maternity leave start date.
If they do not want to take all their leave Employees do not have to take their full maternity leave. If they work in a factory, they must take at least the first 4 weeks following the birth. You must not discourage the employee from taking all their maternity leave. Once maternity leave starts, you must pay them maternity pay instead of sick pay. If the baby arrives early or unexpectedly If the baby arrives early, maternity leave and pay starts on the day after the birth.
Your workplace might have a policy about who must inform you of the birth and how quickly. If the baby is late and your employee planned to take leave from a specific date If the baby is late and your employee gave you a specific date they wanted maternity leave to start, they can still start the leave from that date.
If the baby is late and your employee planned to start leave the day after the birth If your employee told you they wanted to start maternity leave the day after the birth, you do not need to change anything. If there's a miscarriage, stillbirth or the baby dies soon after birth The employee still has their maternity leave and pay rights if the baby: is stillborn after the 24th week of pregnancy dies soon after birth If the employee is eligible for parental bereavement leave and pay , they have the right to take this after they finish their maternity leave.
You should be as understanding and supportive as possible in these circumstances. If you need to discuss work-related matters with the employee, you could arrange with someone else for example, a friend or family member : when this communication happens how it happens for example, whether any urgent communication can be emailed to a friend or family member for a limited time You could also offer more time off or a phased return to work.
The law on discrimination It's against the law to treat an employee unfairly because of maternity leave they take, or plan to take. Maternity pay Employees are entitled to maternity pay. This means the pregnant employee could end maternity leave early. The pregnant employee must still take at least 2 weeks' maternity leave after the baby is born.
Holiday leave Employees build up 'accrue' paid holiday as normal during maternity leave. Holiday leave and maternity leave cannot be taken at the same time.
It's a good idea to: discuss with your employee whether they'll take their holiday leave before or after maternity leave keep an up-to-date note or other record of what's agreed Redundancy If you need to make the employee redundant when they're pregnant or on maternity leave, you must: check the redundancy is genuine and necessary ensure you consult and keeps in touch use redundancy selection criteria that do not discriminate consider alternative work The pregnancy or maternity must not be part of the reason to make them redundant — you might be breaking discrimination law if it is.
You can be made redundant if the business where you work is closing down. Hopefully your employer will have enough cash to pay all of its workers all of the termination payments they are owed, such as notice pay, redundancy payments, and wages and holiday pay owed.
Am I entitled to redundancy pay? The amount you will get depends on your age and how long you have worked for the company. You may also lose out on statutory redundancy pay if you turn down a suitable alternative job from your employer without a good reason. Some employees may be entitled to contractual redundancy pay even though they are not entitled to statutory redundancy pay.
You may be entitled to a longer notice period as part of your employment contract. Citizens Advice is made up of the national charity Citizens Advice; the network of independent local Citizens Advice charities across England and Wales; the Citizens Advice consumer service; and the Witness Service.
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