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Ask Jeremy Aldermartin Your Own Question
Jeremy Aldermartin
Jeremy Aldermartin, Solicitor
Category: Employment Law
Satisfied Customers: 724
Experience:  Dual qualified Solicitor and Attorney
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My wife had been on maternity leave and was, as far as we

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My wife had been on maternity leave and was, as far as we were aware, paid full pay for twelve months due to her 10 year service with the company. After 12 months she decided she was not going to return to work and resigned. Her work have now came back to us stating they made a mistake and she should have only been paid statutory maternity leave pay and want £17K back
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: We have had some correspondance with their HR department but they are adamant they are correct. We have not had any legal advice as yet.
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Its my wife not myself, she was not in a union and she is now self-employed with a small wage
JA: Anything else you want the lawyer to know before I connect you?
Customer: I have some correspondance which I could email over which would explain matters in a bit more depth
Hi thank you for your message, hand you been able to check her contract of employment regarding maternity leave? Statutory maternity pay only comes into play when the employer has no additional provisions regarding maternity such as in there contract and in essence they claim the money from the government and pass it on to the end employee.
Customer: replied 1 month ago.
No, she is trying to obtiain a copy. The problem is that she signed a contract with Norland ten years ago, which was then TUPE transferred to CBRE, then TUPE transferred again to the employer we have the problem with, ISS. As such they and us do not have a copy of the contract, just the statement that her previous contracts conditions are transferred
Well if they do not have a copy of the contract how can they say she isn’t entitled to the money she received?
Customer: replied 1 month ago.
Well that's one of the points we made but they seem adamant that we are not due to monies.
Customer: replied 1 month ago.
34;As your employment transferred under TUPE, you were not issued with an ISS contract of employment. ISS honoured your contractual terms as detailed in the TUPE ELI supplied to us. We believe you were sent the following documents which is standard with all TUPE IN procedures: ISS Code of Conduct, ISS People and Culture Policy and ISS guide to online payslips. " this is the response we received when we requested a copy of the contract

Thank you for your message, the effect of TUPE is that it moves employees and any liabilities associated with them from the old employer to the new employer by operation of law. As a consequence any obligations your old employer had related to maternity leave to your wife would be transferred to ISS by virtue of TUPE. The fact she was not provided an ISS contract of employment does not matter because the old terms in her old contract stay in place under ISS. Therefore, they need to be able to show what those terms were to refute the claim for maternity or indeed a refusal to return the money paid. I hope this helps, if you could accept the answer and rate me 5 stars then Just Answer will credit me for helping you today.

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