Employees’ benefits rights when taking maternity leave

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• By law, employers must continue to provide non-cash benefits throughout an employee’s maternity leave.

• This includes benefits offered via a salary sacrifice arrangement, even if an employee is not currently earning a salary to sacrifice.

• Employers must pay full pension contributions during any period of paid maternity leave, but do not have to do so during unpaid periods.

• Rules around company cars and car allowances can be a complex, rather grey area.

 

Case study: Amnesty International targets gold standard policy for maternity leave

One organisation that has a lot of experience with maternity leave planning is human rights group Amnesty International UK. Its average staff age is 37 and two-thirds of its 200 employees are female.

The charity pays 26 weeks’ salary at full pay and 13 weeks at the statutory maternity pay rate or 90% of the employee’s normal wage, whichever is lower. During paid maternity leave, it provides full employer pension contributions and childcare vouchers.

Louise Court, head of human resources, says: “In 2007, we made a conscious decision to work towards a gold-standard maternity policy that would be among the best in the voluntary sector.”

Over 90% of Amnesty’s female employees return from maternity leave and it has so far granted all workers’ requests for flexible or part-time working. “We believe [our maternity leave policy] has given us a continuity of knowledge and skills that we would otherwise not have had, and in the long term has been cost-effective,” says Court.

Case study: Southdown Housing builds flexibility into maternity leave

As one of Working Families’ 2011 top 10 employers, Southdown Housing Association knows the importance of
complying with maternity leave legislation.

The organisation, which has 700 staff, continues to pay car allowances and childcare vouchers during maternity leave. It also offers a health cash plan that pays between £50 to £200 when a baby arrives.

Janet Casserley, HR services manager, says: “Our maternity pay is in line with statutory. But we are a very flexible employer, with the majority of our staff returning to work on a different working pattern to fit in with their lives.”

Southdown starts caring for mums-to-be as soon as they announce they are expecting. “When women inform us they are pregnant, we carry out risk assessments on their work and make any necessary reasonable adjustments,”says Casserley.

“We are a member of Tommy’s pregnancy accreditation programme and give staff and managers a guide on pregnancy at work, which provides contact numbers direct to a midwife in case of any concerns.”

Organisations need to make sure they are familiar with the benefits entitlements of employees who are going on maternity leave, says Jenny Keefe

With a mass of legislation covering benefits during maternity leave, employers could face claims if they fail to smooth out any bumps in their policies. All expectant mothers are entitled to receive non-cash benefits, such as gym membership, life insurance and private medical insurance throughout maternity leave. The exception is cash perks with a transferable value, such as luncheon vouchers or, arguably, car allowances.

Employers may assume they do not have to provide benefits offered via salary sacrifice during maternity leave because the employee may not earn a salary to sacrifice during their entire leave period, but this is not the case. Unless it is a cash benefit, they must keep providing it. Richard Cummings, a consultant at HR Insight, says: “This can be viewed as a serious disadvantage to employers that enter into a salary sacrifice scheme. An employee may give up [benefits] voluntarily, but cannot be forced to do so.”

One of the more contentious issues is how childcare vouchers are classified. Most benefits consultants and lawyers believe these count as a non-cash perk, so women should receive them during maternity leave (when they are having their second child, for example). Suzanne Horne, employment partner at law firm Paul Hastings, says: “The fact that childcare vouchers are non-transferable and cannot be converted into cash suggests they cannot be considered wages or salary, and should be maintained. This is a view supported by HM Revenue and Customs (HMRC) in its guidance on statutory maternity leave.”

Unlawful attempt to contract out

But many employers fail to pay the vouchers, viewing them as an alternative way of paying salary and stating in contracts that staff can get vouchers only in weeks when they earn enough to cover them. Horne says: “If HMRC’s guidance is correct, such a policy is open to challenge as an unlawful attempt to contract out of the regulations.”

For company cars, the rules get even more complicated. These count as a non-cash benefit, so workers should keep their car throughout maternity leave. The exception is if the car is solely for business use, in which case it is not considered a benefit, so does not have to be provided.

Car allowances are a muddy area of law. Horne says: “It is a question of fact as to whether a cash allowance in place of a benefit in kind falls under the definition of ‘remuneration’ and, as such, does not have to be paid during maternity leave. A cash allowance is payable only if it can be construed as a benefit other than wages or salary.

“Unfortunately, the law is not clear as to which category car allowances fall into. Often, car allowances appear separately to wages on payslips and are not pensionable, suggesting they are benefits in kind rather than part of salary. But some employers treat cash car allowances the same way as salary and do not pay them during maternity leave.”

Full employer contributions

The law is clearer for pensions. Employers must pay full contributions to occupational schemes during ordinary and paid additional maternity leave. They do not need to contribute during unpaid additional maternity leave, which is weeks 39 to 52 if the employee received only statutory maternity pay.

Robin Hames, head of technical and marketing at Bluefin, says: “The employee can be expected to contribute to their pension at their normal rate during paid maternity leave, but based on their maternity pay, not their higher contractual salary. For a DB scheme, this means the employee enjoys fullrate pension accrual. In a DC scheme, the employee enjoys full-rate employer contributions and their own reduced contributions.”

Employers also need to consider the 2012 pension reforms, because some staff are likely to have babies arriving as their employers reach their staging date. Kim Honess, head of flexible benefits at Mercer, advises organisations to assess qualifying earnings, which include both company maternity pay and statutory maternity pay.

“This should form part of the work [organisations] are doing in preparation for auto-enrolment,” she says.

“Employers are also required to re-enrol employees who opt out every three years, which could be during a period of maternity leave. The qualifying earnings assessment applies again here, although legislation is still being clarified.”

Continue to accrue holiday

Women continue to accrue holiday during maternity leave, but there is no legal requirement to let them carry it over into a new leave year. Rachel Stone, director of people management at Smith and Williamson, advises employers to make their holiday policy clear, telling expectant mothers how much leave they have left and when the holiday year ends. “A discussion on how women will use this entitlement can be helpful,” she says. “Will they take all outstanding leave for that year before maternity leave starts or hang on to it to ease their return to work?”

One employer that ensures new mums get the holiday they are entitled to is Welsh charity Chwarae Teg (Fair Play). Ann Elliot, resource manager, says: “We make sure staff understand their options for taking leave. A mother returning to work at the end of the leave year in March will understand she would need to take most of her leave during her pregnancy or return earlier to allow the leave to be taken before the leave year ends.”

One final point to bear in mind is new rules that came into force in April 2011 giving fathers the right to take up to 26 weeks’ paternity leave if the mother returns to work. Where male staff take paid paternity leave, the same benefits approach would apply.

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