Hi
We have an employee who has recently returned from 26 weeks maternity leave - been back approximately one week. She is now asking to be returned to maternity leave for an additional 26 weeks of additional leave.
Payroll have said she cannot go back onto SMP because she was taken off due to returning.
The employee is now screaming discrimination under social economic changes.
What alternatives do we have? And is payroll correct? Thanks
Hey Laura, I think your payroll are technically correct. Couple of potential ways around this, but would need some flexibility from Payroll and the manager.
Ask payroll to pay this week as KIT days and allow the employee to return to maternity leave. Or
Could you suggest that the employee take Shared Parental leave instead? Assuming that the managers would be happy to waive some of the notification time?
HI Laura. Once maternity leave has been broken by way of a return to work, it can't be reinstated. There are different provisions relating to curtailment for the purpose of shared parental leave but this doesn't seem to fit with that. It's not discrimination - it's how maternity leave works.
Alternative is you could consider offering unpaid leave (or combination of parental leave which is unpaid, and up to a max of 4 weeks in a year and 'standard' unpaid leave) but she won't be eligible for SMP if she has broken her mat leave by way of returning.
Lynsey is right - assuming you haven't already closed your payroll for the month and notified HMRC that she has returned, then you could count that week as KIT days and give her 25 more weeks mat leave (the week of her KIT days still counts as mat leave). However you don't have to do that - it depends how nice you want to be. If you've already released her maternity cover you may not be in a position to allow her to go back on maternity leave. I'd be deeply uncomfortable about allowing it in case HMRC ever found out.
One thing you are not doing is discriminating against her - surely she understood that returning to work meant that she had finished her maternity leave. Applying the law isn't discriminatory. ;-) What is her reason for assuming discrimination? And what is her reason for wanting to return to mat leave? Has she had a flexible working request declined? Can you shed a bit more light on the situation?
Did the employee give formal notice to return to work (thus ending her maternity leave) and has now changed her mind? Or, is there a possibility that she thought she was doing a KIT week? I agree with the suggestions above, if payroll isn't closed you could technically make that week a KIT week, but are under no obligation to do so if she clearly and intentionally returned to work.
I'm definitely curious about her discrimination claims - I wonder who is giving her her information?
I agree with the advice above. There may be a way to wangle this but I would stop well short of taking risks where HMRC are concerned.
Operationally, also, it might be a rather big ask to lose someone - who the organistion believed to be returning to work after 6 months away - for another 6 months, completely out of the blue. For that reason, I think bending the rules here would be taking 'being nice' to something of an extreme; depending, of course, on all the circumstances.
And yes - discrimination is a red herring here.
It sounds as though your employee has made a bad decision and/or suffered some really bad luck and - either way - is trying to make it your problem. If her personal finances have changed dramatically then is there anything else you would consider in such circumstances, such as an interest-free loan or any other form of support?
Was the employee made fully aware of how maternity pay and leave works - by her employer - before her leave started? Just a thought in case she genuinely doens't know her rights/responsibilities or understand the situation. As Jacqueline says, more context might be useful here.
