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Breach of contract - SMP Payments - What can we do?

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Hi all, hoping you can help?


My wife told her employer 6 months ago she was pregnant, instantly they told her they were going to have to cut her hours as they needed to reduce costs. My wife raised a greivance, which was eventually closed when the employer agreed to pay her SMP based on her full time hours and not her part time. A variation of contract was signed, stating this agreement.


For the past 3 months my wife has been asking for confirmation of her SMP payments from her employer, on her final day of work they told her what there were. Doing the maths we calculated the payments were based on her part time salary. The employer advised her that they couldn't do anything but could pay the difference as a return to work bonus. She asked for the bonus to be paid at the end of the first 6 weeks and got the response below


"I appreciate your workings out however, our hands

are tied. As I have previously explained the Accountants do the payroll and

ensure that everything is correct above board. The advise I have received is

that we can offer you a return to work bonus of £367.40. Whilst it is true

that we agreed to try and base your SMP Calculations on your full time

salary the law states quite categorically that SMP is calculated on your

last 8 weeks relevant pay period. Certainly I was under the misapprehension

that we could do it. However the advice is different. The Accountants will

not agree to break the law despite what I say or have sought to agree with

you. Hence this bonus scheme idea was formulated.


It is entirely up to you whether you accept it or not. You are of course at

liberty to seek advice should you so wish, But, unless I am persuaded that

there is another way then there is nothing I can do.":-x


The actual difference is only about £360, but it's more the principle. They have messed her around for the entire 5 years she's been employed by them and this is the thanks she gets.


Is there anything we can do to force them to pay up????:???:


Thanks all


<(o.o)> Smackbat


:) Smile.co.uk - £4,400 WON 12/10/06

:)Smile.co.uk - £156 WON Feb 07

:)Smile.co.uk - £280 WON 25/06/07

:mad: Egg PLC - £3,420.72 - Defence filed 24/06/07

:? Alliance & Leicester - DPR Request sent

:? Woolich PLC - To Start

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In simple terms, no. What they say about the SMP is quite correct, as ultimately the State picks up the tab for that and the penalty for fraud could be quite severe - especially for an Accountant!


The issue therefore is one of whether you can persuade them to pay the amount as a 'maternity' bonus rather than a 'return to work' bonus, and I suppose that there could well be the question of what would happen were she not to return to work. That would present a very loose argument that denying a previously agreed bonus for not returning after Maternity Leave could be a form of discrimination.


Personally I would have pushed the case for SD when they stated a cut in hours immediately after advising them of the pregnancy!

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.






If I have been helpful in any way - please feel free to click on the STAR to the left!


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