One of the reasons why very few cases of discrimination in maternity are tried by a labour court is that employers almost always decide. The First Tier Tax Tribunal ruled that she was legally entitled to SMP, which could not be excluded under a settlement agreement. This meant that any settlement agreement would only cover SMP if it explicitly referred to SMP and the correct amount had actually been paid to SMP under that agreement. Take a copy of form MATB1 maternity certificate and return the original to your employee. Her employer thought this included any entitlement to the statutory maternity allowance (SMP) which in their case would amount to around £8,000. However, the worker then claimed SMP in addition to the negotiated amount. Although the comparative payment may contain an element with regard to maternity entitlements, there was no indication that part of the payment should be paid to SMP. Although an element is included for SMP, this element would be subject to NICs, contrary to the wording of the agreement. The fact that you are on maternity leave alone does not prevent your employer from investigating real disciplinary matters (when he should absolutely not contact you within the first two weeks of your maternity leave). However, your employer must ensure that you are not disadvantaged during the disciplinary proceedings because you are on maternity leave, otherwise it could be discrimination on the basis of maternity. Unlike most cases of unfair dismissal, you do not need to have worked 23 months and 3 weeks for your employer in order to obtain the right to skip the queue for suitable alternative roles in the event of a dismissal situation during maternity leave.
If there is another suitable position and your employer does not offer it, your dismissal is automatically unfair. The offset rule only applies week by week. The employer cannot account for the contractual remuneration paid during the first part of the maternity allowance period to the SMP due during the remaining part of the remuneration period. According to Schedule 13 of the Social Security Contributions and Benefits Act 1992 (SSCBA 1992), “contractual remuneration paid to a woman by one of her employers for one week during the maternity benefit period shall be paid to fulfil any obligation of that employer to pay her for that week [SMP]”. In other words, contract wages can be deducted from the SMP, but only on a weekly basis. Discriminatory or unfair treatment of a woman who is also pregnant or on maternity leave may also occur at any time during her pregnancy or maternity. `. an employer will have failed to comply with the obligation [to pay substantial environmental compensation] under a settlement agreement only if the SMP agreement expressly includes the amount paid. In addition, social security contributions must be paid for the SMP.. . . .