Many thanks for your patience. The issue of bonus entitlement during maternity leave is a rather complex matter, not helped by certain inconsistencies between UK and European laws.
First of all, domestic legislation state that during statutory maternity leave, all terms and conditions are preserved, including all matters connected with the contract of employment, except those related to "remuneration", defined for this purpose as sums payable "by way of wages or salary". So you must try and determine if the bonus could amount to wages or salary and if so it would be excluded from the protection you get during maternity leave. This would be the case if for example it was taxed and subject to NI contributions, perhaps if it was pensionable or paid through payroll.
Assuming that the above protection applies and the bonus is not counted as part of your wages or salary, then it is potentially possible to claim for detriment for a reason connected with pregnancy/maternity. However, there is case law that confirmed it was not a detriment to reduce an annual bonus pro rata to take account of the time spent on maternity leave (excluding two-week compulsory maternity leave).
The latest legislation on the matter, The Equality Act 2010, provides a "maternity equality clause" (section 73) which is intended to give a woman the benefit of a pro rata entitlement to a bonus that would otherwise have been denied to her during maternity leave. This equality clause modifies your contract where necessary to ensure that a bonus must be paid when it would ordinarily have been paid but for you taking statutory maternity leave, in so far as it relates to the following:
- Time before she begins statutory maternity leave;
- Time when she is absent on compulsory maternity leave; and
- Time after she returns to work following statutory maternity leave.
This means that, in effect, an employer can reduce your bonus pro-rata to reflect time spent on maternity leave other than compulsory maternity leave.
A similar principle would apply in relation to the childcare vouchers. Whether these vouchers should be offered during maternity leave depends on whether they will amount to "remuneration" (which does not continue during maternity leave) or non-cash benefits (which do continue during maternity leave).
There are various bits of legislation and guidance that may be used to try and determine which definition the vouchers fall under. The Maternity and Parental Leave etc. Regulations 1999 allow employees on ML to continue enjoying their usual contractual benefits during their absence, except for remuneration. It does not state whether vouchers can be included in that though.
HMRC has some non-binding guidance that states vouchers are non-cash benefits rather than remuneration but that is not legally binding. However, they also state that if the employee is only receiving SMP then employers cannot offset any of the cost of the vouchers against it. So it is possible to stop the vouchers during ML, but not use them towards her SMP payments.
So the key is whether the vouchers amount to remuneration. If they do then it is not possible to limit access to childcare voucher schemes during ML as it would amount to sex discrimination on the grounds of maternity leave. The issue is that there is no test law on this and it is a grey area, so whilst she may certainly try to challenge this, the outcome cannot be guaranteed. At first she may raise a grievance with the employer about this, but if that is refused and they make the deductions all she can do is consider taking the matter to the tribunal and then it is really unknown what the outcome could be, because as mentioned it is not something with legal precedents.