Employment Lawyers Can Answer Your Employment Law Questions
Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.
How long has she worked there for, when did you originally employ her? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks
Did either of you issue notice of termination of employment at any time around the date when her employment was supposed to terminate?
Ok thanks. The main issue is that her employment was never officially terminated and she is still legally your employee to date as no notice was given by either party and simply having an intention to leave is not enough. Formal notice must have been given to give a clear indication that the party issuing it wanted the employment to terminate.
As far as the new pregnancy is concerned, she would be entitled to another round of SMP if she meets the qualifying criteria for it, specifically being employed by you for at least 26 weeks going into the 15th week before being due.
Therefore, if her employment terminates before the 15th week before the due date, she won’t meet the criteria and won’t be entitled to SMP. This means that if you were to end her employment (or she resigns) at any time before week ending 15 August, she will miss out on the SMP qualifying criteria.
Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.
Being on SMP does not prevent you from terminating her employment, however it does not end her SMP either and she continues to receive that just as if she was still employed by you. The only thing you need to watch out for is that you are not terminating her because of her pregnancy as that would amount to discrimination.
The fact that she gave birth prematurely would not have tied you in to be her employer for any amount of time, her employment could have still ended at any time thereafter. However, if she had already met the criteria to receive SMP, she would have continued receiving that even if her employment had terminated
The first question I cannot say with certainty because it is more of a specialist issue for a tax adviser rather than an employment lawyer (we deal with eligibility etc, whereas the mechanics of payment, especially through HMRC, are for tax advisers). We do have a section on that here though if you needed more specialist advice
And yes to the second question - you are not her employers at the time, even if you still pay her SMP for the first pregnancy so will not be liable for the SMP for the new pregnancy
You are most welcome and all the best