Your maternity queries answered

February 13, 2007

Your maternity queries answered

Are pregnant employees entitled to a car allowance? What holiday leave are they given and can they take a secondment? Members of HR Zone advise on a variety of maternity queries.

1. Is an employee who has been absent for five months on maternity leave still entitled to the full year’s holiday allowance?

Iain Young:
“Yes she carries on earning holiday entitlement whilst she is on maternity leave. Holiday accrues as normal under the contract during the 26 weeks of ordinary maternity leave. During additional maternity leave the employee will accrue holiday under the Working Time Regulations. This entitles all employees to 20 days holiday per year. You may find it easier to allow the employee to continue accruing holidays as laid down in her contract rather than attempting to administer two systems.

“If the holiday years rolls over from one year to another during the same period an employee does have the right to ask for the leave to be carried over or they can ask for a cash payment to be made.”

2. What are the views if an employee, who is three months pregnant, applies for a secondment role within the company which is for six months or 12 months, meaning that if the employee is successful will only be able to work for the first three or four months of the secondment due to maternity leave? Is it worthwhile in that case for the employee to apply if only working for a few months of the secondment?

John Farrell:
“Any employee considering a secondment should carefully consider both the advantages and disadvantages of the move. Often secondments carry improved salary or other terms and almost inevitably they carry increased levels of pressure.

“The employee needs to weigh these up carefully before applying, and also to consider their longer term intentions. If, for example, the employee does not intent to return to work then the secondment route may allow them to maximise their maternity pay while also providing their “home department” with a greater degree of certainty – but this is at the cost of the seconded department. If the intention is to return to work then factors such as the potential flexibility of each role and the likely acceptability of any flexible hours needs to be considered.

In all cases the potential health impacts need to be considered by all involved (a secondment to a project which involves a lot of air travel may not be that wise). Once the employee herself has worked through these issues she should then decide whether to apply. My experience is that expectant mums are generally not inclined to make rash commitments, and that even those who are just trying to “up their maternity pay” are the same personality types as would take the secondment and use it as a “jumping off point” for a change of employer.

“The employer will need to be very careful not to discriminate because of the pregnancy but this is true in all cases anyway. That said the employer does need to take account of the potential health and safety issues especially if the nature of the work is likely to be materially more arduous.”

3. Before an employee went on maternity leave, they had a temp in to cover her role whilst she was off. The temp has given one month’s notice and they could potentially be restructuring the department and possibly making her role redundant. Where does she stand with her maternity pay and what are her options?

Neil Tonks:
“Your friend’s statutory maternity pay is unaffected by all this – she still gets the full 26 weeks regardless of what happens to her job. Women on maternity leave are entitled to special consideration in redundancy situations, such as being at the top of the queue when alternative work is available. I’d suggest she reads the relevant sections of the DTI guide to maternity, which can be found at the following link:
DTI guide

4. An employee thinks she is entitled to receive car allowance for the first 26 weeks of Ordinary Maternity Leave. HMRC guidance state that payments which are earnings for Class 1 National Insurance Contributions should be included i.e. salary and car allowance. The employee has cited practice in local government employees and the EOC. I’m not sure how relevant local government practice is to a business. Also The EOC guidance in this aspect of entitlement is vague and mentions “uncertainty” about what constitutes “remuneration”.

“We have not paid car allowance to an employee on maternity leave, we do however, include this sum in the calculation of maternity pay along the guideline provided by HMRC. Does anyone have experience of this and what the legal requirements are about employees receiving car allowance during OML?”

P. Simon Parsons:
“During ordinary maternity leave (as is the case for ordinary paternity and ordinary adoption leave) an employee has a statutory right to continue to benefit from the terms and conditions of employment which would have applied had they been at work (such as benefits in kind), except for the terms providing wages or salary including bonus (Cash Payments).

“I would suggest that cash Car Allowance is wages or salary and continuance during OML is not a right of the employee. In reality here, employees have choices and depending on their choices will effect the application during OML. If they choose a car then they can have the use of the car during OML (unless the vehicle is exclusively for business use only).

“However, if they choose cash, the employee is not entitled to the allowance continuing during OML (they get some of it in their SMP already). Employees are not entitled to any cash elements of their remuneration during maternity leave. Of course, employers and employees may agree enhanced contract terms if they so wish which may even give entitlement during AML periods as well. The points of disagreement will be on the equity of operation between the two choices within such schemes! Car or cash? Employees just need to be aware of the consequence of their choice.”

5. An investigation began before an employee’s maternity leave but it was concluded and no formal investigation interview took place. Two members of staff have been disciplined, one below and one above the member of staff – can the member of of staff be disciplined on her return or does it fall outside the reasonable time limit?

Iain Young:
“Whilst I would agree that in principle there is no such thing as a reasonable time limit, the question is would a tribunal see it this way? By virtue of the fact you did not start a formal process, even if it was just a letter confirming that on her return the matter would be concluded, she may well argue that she believed the matter to be closed.

“I think this needs careful thought before you pursue the matter. Unfortunately whilst we in HR have a good idea of what is right and wrong often the views of the employment tribunals do not match ours.”

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