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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 61655
Experience:  Qualified Employment Solicitor
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I am a pregnant woman who works full time and went on

Customer Question

Hello,I am a pregnant woman who works full time and went on maternity leave on 05/11/19 (with a baby due date being 30/11/19). On 25/11/19 I received my payslip through post together with a letter enclosed to confirm that my employer will not pay me SMP due to the fact I have not been working long enough (i.e. at least 26 weeks up to any day in the qualifying week). My employment started on 29/04/19. The problem is that during the period of my employment, my employer did not mention to me even once that I will not be qualifying for SMP and I only found this out 3 days ago, through the letter. I had few conversations in the meeting room with both of my directors regarding my maternity, I also asked them if I need to prepare anything in writing to confirm my pregnancy or date for maternity leave, I also asked them if there is anything I need to do with regards ***** ***** situation. On all meetings, the answer was 'no, you don't need to do anything" and " we are a family-friendly work environment and we support our staff during the pregnancy time". Now I have to apply for maternity allowance but I can wait even 50 working days to receive any money from HMRC. I understand that according to the law I am not qualified for SMP (fair enough) but I feel that I have been treated very unfavourably and unfair as I have been now left without any source of income, 5 days before my due date and probably for the next 2 months. I also feel I have been mistreated and mislead as none of my directors mentioned even once that I should apply for Maternity Allowance as no SMP will be paid to me. My question on that situation is: should my employer give me any notice about me not being qualified for SMP? Should my employer, according to the law, give me all relevant information with regards ***** ***** leave and maternity pay at certain time before my leaving for maternity leave? Or is it up to me to find out all the information myself? Thank you very much in advance
Submitted: 8 days ago.
Category: Employment Law
Expert:  Ben Jones replied 8 days ago.

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

Expert:  Ben Jones replied 8 days ago.

Does your employer have a HR department?

Customer: replied 8 days ago.
not as far as I am aware, definitely not in the office unless it has been outsourced somewhere
Customer: replied 8 days ago.
I know that our payroll is being outsorced though
Customer: replied 8 days ago.
Thank you for your help Ben
Expert:  Ben Jones replied 8 days ago.

Thank you. The issue is that the employer has not done anything wrong legally because all they would have had to do is look at whether you qualify for SMP and if not – issue form SMP1 giving reasons why and you can then use that to claim MA. Your expectation for them to have informed you earlier is not a legal one – it is just an ethical one, which a ‘fair’ employer should have probably done. But their failure to do so does not mean they have broken any laws – they have just not done what you may have expected them to from an ethical point of view, but that does not give you rights to take it further.

 

I appreciate this may not be the answer you were hoping for but it is the legal position and I hope that it at least clarifies where you stand?

 

 

 

Customer: replied 8 days ago.
Hi Ben, thank you for your feedback on that. What about the fact that I asked my directors on each occasion we had a meeting if anything from a formal point needs to be prepared and they said "no". Why did no one tell me that I should apply for a maternity allowance as no SMP would be paid to me? also how being a "family-friendly and supporting your staff during pregnancy" claim has been made if I have now been left with no source of income for about 2 months and infirmed about this 5 days before the due date?
Customer: replied 8 days ago.
can you also look at the following link from gov uk about giving notice in writing by the employee (I asked them if I have to do anything like taht and they said no but apparently I was obligated by law to do it, why that was not articulated to me then?) https://www.gov.uk/employers-maternity-pay-leave/notice-period
Customer: replied 8 days ago.
another link refers to the notice they should give me if refused to pay SMP. Again that part was never articulated to me in any way hence I assumed that I was eligible for SMP https://www.gov.uk/employers-maternity-pay-leave/refuse-pay-form-smp1
Expert:  Ben Jones replied 8 days ago.

I appreciate where you are coming from but it is not your employer’s obligation to sort out your benefits for you – all they have to do is pay you what you are supposed to get but working out what you get is your responsibility, not theirs. Until they have received the official request for SMP and processed it they are not obliged to advise you that you do not qualify.

 

So how long after submitting your request did you receive their notification that you do not qualify?

Customer: replied 8 days ago.
I haven't submitted my request because they told me I don't need to do anything in paper with regards to my maternity, which according to gov uk is not true. Can I take my case from that side that I have been misled by my employer even though I specifically asked if there is anything formal I need to prepare.
Expert:  Ben Jones replied 8 days ago.

Very unlikely – after all it is not the employer’s responsibility to tell you what the process is – that is defined in law, it is on plenty of websites and you can ask for advice on it etc. So apart from an internal complaint about it, it would be very difficult to make a legal claim against them for it

Customer: replied 8 days ago.
Also you asked me if there is an HR department at my work, why was that? Is there anything from HR that should be actioned? If so, what happens if there is no HR in place, who is then responsible?
Expert:  Ben Jones replied 8 days ago.

No I was just wondering who you were dealing with and who I would direct you to discuss this with. It is nothing to do with the legal side of things, more practical

Customer: replied 8 days ago.
Ok, I understand what you are saying that it is not employers' responsibility to tell me the process, could you quote some laws for that so I can have a read? I cannot really find it on any websites I went to. My main point is that my employer has been specifically asked by me about any formal forms, emails or letters I should complete in order to process my maternity legally - my employer said no! Which is legally not true, does that mean anything? I was not told to search for any information myself to make sure I meet all legal requirements. Also, my employer never asked for an SMP request from me.
Expert:  Ben Jones replied 8 days ago.

Laws about what – that the employer is not supposed to tell you that in the first place?

Customer: replied 8 days ago.
laws confirming that the employer has no legal responsibility for the process of SMP
Expert:  Ben Jones replied 8 days ago.

You won’t get anything that specific – you have to look at it from the opposite way – there is nothing that says they ARE responsible. So unless it says somewhere specific that they are, then it is assumed they are not.

Customer: replied 8 days ago.
ok, what about the point I made earlier? copied that below for you again: My main point is that my employer has been specifically asked by me about any formal forms, emails or letters I should complete in order to process my maternity legally - my employer said no! Which is legally not true, does that mean anything? I was not told to search for any information myself to make sure I meet all legal requirements. Also, my employer never asked for an SMP request from me.
Expert:  Ben Jones replied 8 days ago.

Sorry but that does not make a change – as mentioned you can pursue it via an internal complaint but legally it will be very difficult for you to transfer the liability on to them – you are the one who has to work out what forms you need to complete, when and how. You can ask the employer for advice, but that is all it is – just informal advice and you cannot rely on that officially when all the rules are already set out in law

Expert:  Ben Jones replied 7 days ago.

Hello, I see you have read my response to your query. Could you please let me know if it has answered your original question? You can simply reply on here with a quick ‘Yes, thanks’ and I won’t bother you again. Thank you

Expert:  Ben Jones replied 6 days ago.

Hello, not sure if you are having trouble seeing my posts? I have not heard back from you since posting my answer and just need to know if your query has been resolved. If you could please post a quick reply to confirm I would be very grateful. Thank you