Maternity Pay and the Government Job Retention Scheme
The Government has confirmed that it will pay 80% of an employee’s wages, up to £2,500, for any employee who is furloughed by their employer. However, in our opinion, you will not be able to furlough an employee who is due to start maternity leave or already on maternity leave, so as to avoid paying that person statutory maternity pay (SMP).
What should you be Paying?
- For a woman already on SMP, or contractual maternity pay, they should remain on this until their return to work. Unfortunately, the liability to pay SMP will remain with the practice, as you will not be able to furlough these staff. If you offer enhanced (earnings related) contractual pay to women on maternity leave, this is included as wage costs that you can claim through the scheme.
- Pregnant women have been “strongly advised” to work from home. What if their role does not allow them to work remotely, for example a dental nurse? The practice should strongly consider its duty of care to pregnant women, as requiring them to attend work could lead to a breach of that duty or a breach to the implied term of mutual trust and confidence, which could result in a claim of unfair constructive dismissal. Also if the employee were to develop COVID-19 as a result of you requiring them to work, they might also have a claim for personal injury. Such employees may be entitled to statutory sick pay (SSP). However, as the advice is to stay home, this could result in social distancing for months and an employee is unlikely to be able to survive on SSP long term. The practice could furlough the employee (although it was intend to avoid redundancies), pay the employee full pay or suspend the employee on full pay in line with Regulation 16 of the Management of Health and Safety at Work Regulations 1999. You can find out more about your duties towards a pregnant employee here.
- Women who are due to go on maternity leave but have been furloughed will need to come off furlough and revert to SMP. Again, it is our view that, the liability to pay SMP will remain with the practice. You must pay the employee 90% of their average weekly earnings for the first 6 weeks of maternity leave. The average weekly earnings are based on the employee’s earnings in the 8 weeks prior to the qualifying week. You can found out more on how to calculate that here. This could mean that an employee will receive a lower amount of SMP than she was expecting for the first 6 weeks of her maternity leave.
- If a woman is due to return to work from maternity leave, it will be possible to furlough them as they return. It is likely their pay will be calculated on their agreed return to work hours, not those hours undertaken before maternity leave. We have just received information that the 80% of earnings is based on the higher of (i) the earnings in the same pay period in the previous year; or (ii) the average earnings in the previous 12 months (or less, if they’ve worked for less). This is good news for both employers, who will still be able to claim on the scheme, and employees, as the earnings will be based on a period when they were earning and not on SMP rates.
- If you are considering making redundancies during this period, remember that women on maternity leave are entitled to more favourable treatment, namely they are entitled to be offered suitable alternative employment to avoid their redundancies over and above other employees. For example, if you are reducing your dental nurses from 2 to 3, the woman on maternity leave will automatically be entitled to one of the two remaining roles.
As with all these posts, we can only assess what is likely to happen based on normal legal convention. We will keep posting updates as and when more information arises.
If you need any employment law advise, on this topic or any other relating to the current pandemic, please do not hesitate to contact us on email@example.com or on 0207 388 1658.
Laura Pearce, Senior Solicitor