Maternity pay refused, lack of continuous employment

Case Ref: 5.1/May 2005. Maternity pay entitlements.

Case summary

Our member Ms W was due to give birth in February 2005. She had been refused paid maternity leave. The reason given by the employer was that Ms W had not given continuous employment for the required amount of time. Ms W had appealed against this decision. The appeal was turned down.

Advice requested

The PCS bargaining unit asked for advice on what steps PCS could take in support of the member.

Key advice provided by Thompsons

As a precursor to providing advice on the case, Thompsons summarised the factual background to the case as follows: 

"Ms W was employed by the Department in a temporary capacity on the 17th February 2003. She was told then that her employment was with a view to her becoming a permanent member of staff. 

"Ms W commenced the process of becoming a permanent employee in April 2003. She took the relevant tests in June 2003 and was informed she had passed in July 2003 and supplied the necessary references. She was taken on as a permanent employee on the 17th May 2004. 

"Ms W is due to give birth in February 2005. She has been told she is not entitled to maternity pay given that she was only taken on in a permanent capacity in May 2004." 

The solicitor went on to advise: 

"Although it is not entirely clear from the limited information with which I have been provided, it appears that Ms W has worked for the Department since February 2003. 

"If this is correct then she is clearly entitled to maternity pay. The condition regarding service is found with Section 164(2)(a) of the Social Security Contributions and Benefits Act 1992. This says that, 

'(2) The conditions mentioned in subsection (1) are- 

(a) that she has been in employed earner's employment with an employer for a continuous period of at least 26 weeks ending with the week immediately preceding the 14th week before the expected week of confinement…..' 

"There is no provision in this section or anywhere else that the employment must be deemed permanent in order for the woman to qualify. 

"The Department should be asked to reconsider their position. If they fail to pay maternity pay Ms W will be able to bring a claim for unlawful deduction from earnings under Section 13(3) of the Employment Rights Act 1996."

Legal department comment

Hopefully the above advice will be put to good use when officials are dealing with similar cases. The PCS Equality Department can also be consulted in cases covering maternity leave and how this impacts on pay entitlements.

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