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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50148
Experience:  Qualified Solicitor
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Hi I have been accepted for voluntary redundancy and 37

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I have been accepted for voluntary redundancy and 37 weeks pregnant. The company are trying to combine my smp with my notice period (10 weeks wage). I have quoted them paragraphs from maternity action and acas but they are saying they want me to quote them legislations that prove I am entitled to both! I leave work 28/2.

Please help

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. I will try to find any relevant laws and get back to you.

Customer: Fantastic thank you soo much
Ben Jones :

do you have links to the information you sent the employer?

Customer: I'll try and get them now
Customer: Maternity Action information sheet Redundancy during pregnancy and maternity leave Jan 2013
Customer: Am I entitled to paid notice if my job is terminated while I am on maternity leave?The statutory (legal) period of paid notice is one week’s notice for each year of continuous employment with your employer, up to a maximum of 12 weeks. You are entitled to receive paid statutory notice when you are on maternity leave. However, if your contract of employment gives you at least one week’s notice more than your statutory notice period, you have to rely on the notice period in your contract – contractual notice. The law is currently unclear but it may be unlawful to refuse to pay contractual notice pay during paid maternity leave (i.e. the 39 week SMP period) and possibly throughout maternity leave. If your employer refuses to pay contractual notice pay you should seek advice.If your period of paid notice overlaps with your 39 week SMP period, your employer is entitled to offset SMP against statutory notice pay. However, SMP cannot be offset against a ‘payment in lieu of notice’ so you would be entitled to receive both.
Customer: i can only copy and paste! Sorry I'm on a I pad!
Customer: From acas: Managing redundancy for pregnant employees or those on maternity leave
Customer: Myth: If I make a pregnant employee redundant, I don’t have to pay them maternity pay as well.If a pregnant employee qualifies for statutory maternity pay and is made redundant before going on maternity leave but after the beginning of the 15th week before the baby is due, you will need to pay her statutory maternity pay (SMP) as well as any redundancy payment. Remember you are reimbursed by the government for the SMP.If your company has a maternity policy which offers additional contractual maternity pay this would end when the contract ends unless you agree otherwise.
Ben Jones :

yes that is the law as I know it, so how long have you worked there for?

Customer: Ive worked there for 10 years, so it's 3.5k!! They have asked for the legislations before they will look into it further!
Ben Jones :

And what is your contractual notice period?

Customer: 10 weeks - other people have left and even got signed off sick while being paid notice in lieu
Customer: I've been advised by acas that if I have to take them to an employment tribunal I need to raise a grievance. This is my grievance letter.
Customer: I feel I am forced in to writing this grievance letter to you because the negotiation of my final redundancy payment is causing me unnecessary stress and concern about the monies due to me. I feel this matter need to be brought to an amicable and speedy conclusion. As you are aware, I have been accepted for voluntary redundancy as per my letter of acceptance dated 06/01/14. I am also 36 weeks pregnant. I was given my Redundancy Payment Schedule on 31/01/14, this details the total balance of redundancy and maternity I will receive. Please note this was the first time I was given the combined figures making this difficult to resolve within the timescale required. The figures I have been given, I feel, are incorrect. I have sought legal advise and been given guidance from ACAS who have advised, if this gets to the point where it needs to be raised at an employment tribunal, I need to follow protocol and write you this formal grievance. I feel the figures are incorrect and I should receive the following:Stat Red: ​(10 weeks basic wage £350.16)​£3,501.60Notice:​(10 weeks basic wage £350.16)​£3,501.60EWC top up:​£2,101.01 Maternity​11 weeks at 90% of wage (basic wage £350.16 & 90% = £315.14)​£3,466.54​**Please note I am currently disputing the basic wage figure and ICurrently await a response from Mared Eastwood**SMP​28 weeks at £138.18​£3,869.04 I dispute the Redundancy Payment Schedule figure and have sent several e-mails to Mared Eastwood contesting this. The last e-mail I received from Mared advised it is TNT’s belief their position is correct and complies with the provisions on Employment Rights Act, 1996 as amended. Mared’s e-mail advises if I am able to cite any case law or legislation in support of my point they will be happy to review the matter further. The acts that I have been advised to quote are Social Security act, 1992 and also Employment Rights Act, 1996. As an employee who has been accepted for voluntary redundancy I am entitled to full redundancy pay, as if I was not pregnant and going on maternity leave. Therefore, my notice should be paid in lieu of notice. I must stress the anxiety that this is causing is taking its toll on my pregnancy. I feel I am being discriminated against due to my pregnancy and discriminated against by reason of pregnancy causing undue stress. I believe you are in breech of the statutory maternity pay regulation, 1986 & the maternity and parental leave regulations, 1999. Please can you advise, if I do have to take this matter further I will be able to accept the figure currently on the redundancy payment schedule pending further action being taken to receive the full monies I believe are owing to me. Can you please advise why I was not advised 10 weeks ago I was able to make the decision to leave in order to take my ten weeks notice? As it stands I am unable to do this due to estimated date of childbirth being 13/03/14. I think it was outrageous for Mared to call me on 07/02/14 to advise I could leave that day and be paid for 3 weeks notice and forfeit 7 weeks notice. Also when Mared called me on 07/02/14 she advised me it would be fine to retract my redundancy but there are no more redundancies planned if I was thinking of coming back after maternity leave and going forward to the next redundancies. I felt this was threatening and an afterthought as if my personal situation had not been fully investigated in the first place I have worked for TNT for over 10 years and I have enjoyed the time I have spent working here. I feel I have been loyal and conscientious in all the work I have done. Unfortunately, I feel very let down I am now having to battle for what I feel is owed to me. I have received no support in this matter; with all the information that I have sought I have done by myself or had to pay my solicitor for his time. I am very upset by the whole ordeal as I feel colleagues who were accepted for voluntary redundancy have been signed off sick, started new jobs and even on sick leave and started a college course. I am the one who, asked to stay longer and I still here doing the job I am paid to do, without having any time off. Yours sincerely
Ben Jones :

The relevant law is section 87(4) of the Employment Rights Act 1996, which states in a roundabout way that if the notice the employer needs to give the employee under contract is at least one week longer than their statutory entitlement, they do not need to pay them the full notice pay and can just pay them what they would normally get at the time they are issued with notice. But if the notice period is the same as their statutory entitlement, or no more than a week longer, then they would be entitled to get paid full pay for the full duration of their notice period, regardless if they are on maternity leave, sick leave, etc. So your statutory entitlement is 10 weeks and your contract is also 10 weeks, which means you can expect to receive full pay for the notice duration. This however can be offset against your maternity pay so you cannot expect both – you will receive your full and normal pay but that would include your SMP.

Customer: Thank you very much and thanks for the promt response
Customer: Sorry just one more thing....
Customer: Can I ask for the notice payment as a payment in lieu separate to my smp? I've read somewhere I can't remember where - I read that much info! That they are discriminating me as my redundancy should be paid as if I am not pregnant and my maternity should be treated as I am not being made redundant?? It's soo complex!
Ben Jones :

payment in lieu is not something you can force the employer to do - that is there just in case the employer wants to use it to terminate your employment immediately without having to keep you on for the full duration of the notice period, but that is just an option if they want to use it - you can't force them to pay you in lieu

Customer: Ok hanks. I think they have made a bo bo then - on my redundancy payment schedule they have used the words notice payment in lieu ! But this is the figure I feel that they have wrong! Every one who has already left have been given their notice payment from the next working day after they left - I've chosen to stay a extra 3 weeks then this will take me to when I was/am to leave to have my baby
Customer: Will this help me?? Sorry I bet you wished you never answered me!!
Customer: Employments with normal working hours.(1)If an employee has normal working hours under the contract of employment in force during the period of notice and during any part of those normal working hours—(a)the employee is ready and willing to work but no work is provided for him by his employer,(b)the employee is incapable of work because of sickness or injury,(c)the employee is absent from work wholly or partly because of pregnancy or childbirth [F1 or on [F2adoption leave, [F3ordinary or additional paternity leave]F3 or paternity leaveF2]], or(d)the employee is absent from work in accordance with the terms of his employment relating to holidays,the employer is liable to pay the employee for the part of normal working hours covered by any of paragraphs (a), (b), (c) and (d) a sum not less than the amount of remuneration for that part of normal working hours calculated at the average hourly rate of remuneration produced by dividing a week’s pay by the number of normal working hours.(2)Any payments made to the employee by his employer in respect of the relevant part of the period of notice (whether by way of sick pay, statutory sick pay, maternity pay, statutory maternity pay, [F4paternity pay, [F5ordinary statutory paternity pay, additional statutory paternity pay]F5 , adoption pay, statutory adoption pay,]F4 holiday pay or otherwise) go towards meeting the employer’s liability under this section.(3)Where notice was given by the employee, the employer’s liability under this section does not arise unless and until the employee leaves the service of the employer in pursuance of the notice.
Customer: It's from the employment rights act section 88
Ben Jones :

well this says that the employer can use your maternity pay to meet its liability to pay you full pay during your notice period

Ben Jones :

so you will not get both

Customer: Oh we'll I best give it up then because I'm looking for answers that are not there!! Thank you very much for your help
Ben Jones :

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