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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
Satisfied Customers: 39029
Experience:  Expert in UK Employment Law
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Hi I would like to know if i could make a claim or take

Resolved Question:

Hi

I would like to know if i could make a claim or take any form of action against my employer

I'm currently 33 weeks pregnant and was due to receive my Statuary Maternity Pay, i received a letter yesterday from my employee saying i was not entitled to SMP, i worked for my employer for 2 years and worked on average 20 hours - 30 hours per week sometimes more

At the begining of the year my manager & assistant manager Mistreated, Discriminated, Victimized & Harassed me while i was 12 weeks pregnant to the point i was eventually signed of sick, having extreme bouts of Anxiety, panic attacks, sleepless nights/broken sleep, stress, our male assistant manager followed me around our work premises daily fully knowing i suffered with anxiety, and eventually followed me into the ladies loo calling me in a creepy manor, they also told me i could not sit down for 5 mins because of pregnancy fatigue when i was on long shifts

Shortly after my hours was dropped 12 hours per week under my contracted hours, these bulling tactic made me feel extremely uncomfortable to the point i could no longer bear working there but i did want to quit my job because of this that up until this point i really enjoyed, my doctor eventually signed me of sick for depression & anxiety for 6 weeks, and then a following 6 weeks after a reassessment to be signed back to work,e i received SSP for this

After the Original 6 weeks i, i did feel a little better and after reading up on my work rights felt i could return and try to put up with my boss & assistant manger, and also wanted to return to work as i couldn't save for my baby on SSP, I spoke to my manger the week before and she told me in a belittling tone that it would be better for the company that i stayed of sick, and said she didn't want me returning to work, she also told me i was in the wrong job, and that i should maybe look for something else, but i enjoyed my job until our new manager & assistant manager arrived and made my working life a living hell, even my work colleges began to treat me differently, i was made fun of by our manager & staff collectively about my shirt not being white enough, she threatened to send me home for not having a shirt white enough where i had to go and buy another white shirt just as white to satisfy her

Yesterday after 12 weeks off sick due to anxiety & depression... i was due to go on maternity leave, I received a letter from work saying i was not entitled to SMP (statutory maternity pay) and that it was because the relevant pay weeks for them to calculate whether i was eligible for SMP was when i was treated badly and had my hours cut, my manager told me my SSP would not effect my SMP but in the same week give me a contract for 16 hours only and dropped my hour to 12 hours and began to treat me differently
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded.

For now please let me know what your specific question is?

Customer:

Because i was signed of work due to my mistreatment by management... and forced to work less hours during the relevant months used to calculate whether i was entitled to SMP can i get them done for this?

Ben Jones :

Thank you for your patience - I am just getting my advice ready and will post it on here shortly

Ben Jones :

If you were treated detrimentally because of your pregnancy then that would likely amount to discrimination, which is something you are protected against in law.


 


The test is whether you were treated less favourably because of your pregnancy when compared to other employees that were not pregnant. Therefore, bullying, victimisation, harassment, etc that you were subjected to as a result of being pregnant would amount to discriminatory conduct by the employer and the individual employees responsible for it.


 


If you were the victim of discrimination then you can consider taking legal action to seek compensation. The claim must be submitted within 3 months of the discriminatory act complained of, or the last in a series of discriminatory acts. If the bullying behaviour occurred more than 3 months ago then you can try and claim that their failure to give you SMP is just another in a series of discriminatory acts and use that as the date from which to count the time limit. In any event I would not advise that you delay this much longer if possible.


 


In addition to a claim for discrimination you can also consider resigning and making a claim for constructive dismissal. This should only be an option you pursue if you believe that this has now reached the last straw and you can no longer continue working there as a result of all that has happened. The same time limit to claim applies, in this case 3 months from date of resignation (you would not be expected to work your notice period).

Ben Jones :

Please let me know if this has answered your query or if you need me to clarify anything else for you in relation to this?

Ben Jones :

Hello, do you need any further advice on this issue?

Customer:

Yes, recently last week i was handed my works maternity policy explaining how SMP works, do you know if i should have been handed this sooner?

Customer:

i was given a maternity risk assessment months ago but only just received my maternity policy last week explaining in detail how things would be carried out, leaving me in the dark, my manager kept telling me she didn't know how it all worked and i feel as if she was intentionally misleading me

Ben Jones :

SMP is not a company policy issue, it is a matter of law and that is public knowledge and this would have been available for you at any time to view on the Government websites. If there were other issues that were specific to the maternity policy that were not applied then you can complain to the employer about that - the policy is there to be followed and failure by the employer to do so, especially if these were also their legal obligations towards a pregnant employee, can make them in breach

Customer:

Regarding the letter... Why i cannot pay you SMP i received tuesday, its states i was paying Class 1b NI contributions, on my wage slips it says i paid, employee NIC & below Tax payed, on a Tax Code 512T

Customer:

and that this may mean my employer may not have counted all of my earnings, and that i should ask them to recalculate my earnings as if i had been paying Class 1 NI contributions

Customer:

i used Gov.UK to determine what i was entitled to there calculator based on my earnings during the "relevant period" to which it stated i was entitled to SMP

Ben Jones :

Were you given form SMP1?

Customer:

Yes, and the box ticked was your earnings are to low

Ben Jones :

If you are really not eligible for SMP then you may be able to get Maternity Allowance and you can contact the DWP for that. If you believe that you have been wrongly told that you cannot get SMP the you can raise this with the employer first and then with HMRC

Customer:

I believed my employers deliberately made my working life hell and cut my hours from 30 - 12 hours under my contracted hours, to force me out my job or for them to not pay me as much SMP or any SMP at all, as it all coincides with the relevant period from how SMP is calculated, what would you advise?

Ben Jones :

this takes me back to my advice above - if your hours were cut and as a result you are not eligible for SMP then that is not something that you can challenge with HMRC but you have to pursue the employer for the alleged discriminatory behaviour and that is when the potential sex/pregnancy discrimination claim comes in as well as the constructive dismissal if you believe you can no longer work there as a result

Customer:

I have used GOV.UK maternity calculator for employers and used my pay for the relevant period, it says this employee is entitled to SMP and that you should pay your employer this amount, could i use this as the last straw to resign my job and make a case for discrimination previous to the 3 month period, also If i quit my job would i still be entitled to Maternity allowance ?

Ben Jones :

Try to challenge the employer's decision not to pay you SMP directly with them first but that could be used as a further discriminatory act on their part. You may still get MA if not currently employed as long as you satisfy the employment rule, which you can find here:


 


http://www.dwp.gov.uk/publications/specialist-guides/technical-guidance/ni17a-a-guide-to-maternity/maternity-allowance-ma/

Customer:

I have used my wage slips/invoice for the relevant months used to work out SMP, i did receive some holiday pay during these months because i was receiving much less hours then before and had bills to keep up with so i put Holidays through to help me keep up payments, i read that holiday pay does not affect the relevant period calculations and should be taken into account when adding up SMP, using this i was eligible for more money on SMP than i would receive from Maternity allowance

Ben Jones :

SMP will depend on your earnings during the relevant period of calculation. Holiday pay is just normal earnings and will be included in this calculation

Customer:

Is Maternity allowance calculated using the same rules and "relevant period" as SMP is ?

Ben Jones :

no, the rules are different - MA deals with a test period and that is 66 weeks before your baby is due. Party of the eligibility criteria is that you must have earned an average of £30 a week over any 13 week period in the test period

Customer:

I rang them to tell them that i thought there calculations was wrong, where i was told it can't be wrong, i insisted that it was wrong and she put me on hold for 10 mins, where she then picked up the phone and told me to call back Monday as the person who deals with this is not in, and that they might have been missing a week of the calculations, i then received a phone call shortly after and was told i am right on the boarder line to receive SMP but to call back Monday, So i'm assuming my manager give them the wrong information

Ben Jones :

they may have and by the looks of it they are still unsure themselves and a final decision has not been made

Customer:

I've also noticed my manager had my due date down as the 25th when it is the 30th Aug, so she has "i think" intentionally wrote the wrong date is because she has my records, this makes a massive difference and whether or not i am entitled to SMP

Ben Jones :

it does not matter what they think or what they have written - the due date is set by medical records and the calculations will all depend on facts and figures that have already occurred so it is just a matter of correcting the errors and coming up with the final answer, which can only be one

Ben Jones :

I will be leaving the office in the next 20 mins or so and won't be back until Monday, is there anything else you need me to clarify before I go?

Customer:

no that's fine thank you for your help Ben

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the service I have provided you with as that is an important part of our process. Thank you and all the best

Ben Jones, Solicitor
Satisfied Customers: 39029
Experience: Expert in UK Employment Law
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