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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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I am on mat leave now and i dont have company maternity

Resolved Question:

Hello i am on mat leave now and i dont have company maternity pay as its a small company.. I was doing salary sacrifice to buy childcare vouchers. As I can't deduct them from SMP do i have to fund these myself during my mat leave? thank you....
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Do you actually get statutory maternity pay?
Customer: replied 2 years ago.

Yes I get SMP - but I've read that vouchers can't be deducted from those payments.

Expert:  Ben Jones replied 2 years ago.
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.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
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