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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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My employer offers a salary sacrifice childcare voucher scheme.

Resolved Question:

My employer offers a salary sacrifice childcare voucher scheme. Am I entitled to join the scheme even though I am on maternity leave and receiving SMP?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

The answer to this question depends on whether childcare vouchers can be interpreted to amount to "remuneration". Anything that amounts to remuneration does not continue during maternity leave, however non-cash benefits continue during maternity leave.

The first point of reference would be the Maternity and Parental Leave etc. Regulations 1999, under which women are only entitled to benefit from the terms and conditions which would have applied to them had they been at work, except for terms related to their "remuneration", throughout the whole of their maternity leave. Remuneration is defined as "sums payable to the employee by way of wages or salary".

There is also additional HMRC guidance on salary sacrifice and non-cash benefits, where HMRC is clearly of the view that childcare vouchers are non-cash benefits rather than "remuneration", even if they have been provided by way of salary sacrifice.

However, this guidance is non-binding and there have as yet been no test cases on this issue. What would work in your favour is if the vouchers are non-transferable, cannot be converted into cash by you and are payable to childcare providers rather than the employee. If these factors apply it would suggest that they are non-cash benefits and should remain payable during maternity leave.

Ben Jones :

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Thanks Ben, this confirms my understanding of the situation

Ben Jones :

you are welcome, all the best

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