Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
How long have you worked there for?
3 years and 2 moths
OK thank you, XXXXX XXXXX it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this afternoon. There is no need to wait and you will receive an email when I have responded. Thank you
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:
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.
Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks
Yes it would amount to remuneration and as such it would not be payable during your maternity leave but you can expect to receive the pro rata payment which would have accrued whilst you were still at work and during the compulsory ML. Anything after that period would not be payable until you return to work. If they fail to pay you once challenged then you can consider the small claims court and the costs of that would depend on how much you are actually claiming. If it’s up to £5,000 then the claim fee won’t be more than £100 and there will be a smaller allocation fee of around £40 but that would be about it. Obviously the higher the claim amount is the more fees you will have to pay. If you want to claim the money for the bonus for the current ML then you may wish to consider making the claim at the same time as the old one to keep them together and reduce the fees you have to pay rather than having to pay for two separate claims I separate venues. But if you want to claim for discrimination then you will have to make the claim in the tribunal.
The offer letter can certainly be a binding agreement, together with it being a common practice so far, so it can still have contractually binding effect. You can raise a grievance at any point, if the grievance is not successful then you are really looking at the court options as next steps.
As the employer is not offsetting the vouchers against your SMP rather against your car allowance then they could consider doing that as it may be allowed but as mentioned this is not set in law specifically and it is a grey area so unless you go on to challenge it formally you may not know your true position in that respect.
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