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Hello,

I am looking for some advice on a situation that my daughter has found her in recently.

She went on maternity leave at the end of Jan 2012 and is still continuing this still.

She recently had contact from her Companies New HR manager saying they had no knowledge of this Maternity leave.

So the company have been paying her full salary instead of the reduced maternity amount for 3mnths, also and in lieu of 1 month of SMP.

As she was on supposed about 90% salary for the 1st 3 months (but got 100%) and now is on SMP which is about 50% salary.

The amount owed to date totals about £1200.

Now of course the company want to recover this.

And my daughter is happy to, but not at the amounts the company want as it would cause her considerable financial hardship

This whole situation is now exacerbated by my daughters ex partner losing his job recently and now not being in any position to pay any maintenance

She realises she should have been more aware but during the 1st 4 months of my new grandson’s life, she has been fully occupied by him and just not noticed the 10% overpayment.

NB she has copies of emails from the previous HR manager thanking her and confirming receipt of all the necessary documentation of this that was sent in at the correct time. All these docs & emails have been resent to HR along with the confirmation email evidence.

There was a change of HR Managers with a gap of 1 month with no manager around the time of the start of the maternity leave.

Yet HR still insists they have done nothing wrong!?

The whole situation is also known by my daughter’s line manager. Who was helping sort this all out?

NB As the line manger is being very supportive , HR are now trying to keep her out of the loop, by staying its all a personal matter and they can't discuss it with her .

She want to pay it back but the the company is presently insisting on a payment plan of either a lump sum, or £200 per month , off of her current 50% salary. (This equates to about 300 per month income + child and working tax credits.)

£300 won’t even pay for her Council housing!

She has offered to pay back a lesser mount and we are awaiting a reply.

The whole situation has not been very amicable as the new HR manager has strenuously denied that HR has done anything wrong and has always accused my daughter of being at totally at fault, by not noticing the increased amount.

HR seems to not care about looking after a new born and the fact my daughter does not drive

Hope this all makes sense ? .

Any advice here would be greatly appreciated.

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Hi Ceedy - Your daughter needs to stand her ground with regard to having done everything required to notify the employer of her intended dates for maternity leave and the fact that any overpayment is purely the result of the employer's incompetence. This should go some way to being able to negotiate more favourable terms for repayment.

 

Having said that, there is the unfortunate situation that the employer can quite lawfully recover any overpayment of wages from SMP - Maternity pay is classed as 'wages' and is subject to the same rules on deductions as for any other form of salary, so in theory, the employer would be within their rights to recover the amounts as they see fit. Bearing in mind this, alongside the fact that it is the employer's error which has caused the problem, your daughter needs to present an accurate I&E breakdown to demonstrate that the employer's proposal would lead to exceptional financial hardship.

 

Is it her intention to return to work after Maternity Leave? If this were to be the case, and she made this clear to the employer, then they may be more amenable to an arrangement over a longer term, as they are probably aware that at present, if she were to leave at the end of ML they would have an extremely difficult time in recovering the balance, as there could well be a defence of estoppel in the face of any legal efforts to recover the overpayment. Whilst she is still an employee, and in receipt of SMP however, they do have a very useful lever.

 

Sorry I can't be of any more use!

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

 

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thanks for the reply,

 

She does intend to return to work after this, before the SMP ends.

 

she worried that if she sticks up for herself she will be seen as a problem employee and get stuck on the next trimming down list !!

 

I've seen all about Estoppel, but really that's a last resort.

 

I've calc'd that she would be below the minimum wage after a 200 monthly deduction .

 

Its just their whole attitude to the affair, I'm actually slightly suspicious that HR are trying to bully her into paying it off quick so they can hide the cock up .

Almost sure the HR error hasn't been very public within the company .

 

It hard when she's not at work and having to deal with it all 3rd hand

and

her hitman ( me) LOL can't get too involved .

 

C.

 

 

 

 

..

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May i ask by what authority are they witholding the SMP

 

DID THEY GIVE ANY OFFICIAL NOTICE IN WRITING THAT THEY WOULD BE WITHOLDING THIS PAY

 

being on maternity leave, the employer is on dangerous ground being that is a protected characteristic

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May i ask by what authority are they witholding the SMP

 

DID THEY GIVE ANY OFFICIAL NOTICE IN WRITING THAT THEY WOULD BE WITHOLDING THIS PAY

 

being on maternity leave, the employer is on dangerous ground being that is a protected characteristic

 

 

the only notification of this witholding of SMP was in the letter mentioned in my first speel, that was laying out the very high payment plan they had come up with. .

A very Basic precis of the letter is " you are at fault for not noticing the overpayments, we want you to pay it back according to this payment plan ,and we are witholding your June SMP until this is resolved ."

 

As she is close to the minimum wage at her normal rates, SMP is a lot lower and they want to take out an extra 200 a month from this SMP !! .

 

C.

 

 

C.

Edited by ceedy
duff spelling
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I think they are edging very close to the unlawful deduction of wages, they may have crossed it already.

 

I would suggest that some legal advice might be necessary here, with all the letters and documentation you have. If you cannot afford a solicitor then take it to the CAB for advice.

I am not a legal professional or adviser, I am however a Law Student and very well versed areas of Employment Law. Anything I write here is purely from my own experiences! If I help, then click the star to add to my reputation :)

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Hi, agree with all the advice given before, and definitely go to CAB or union (if she's in one). I think what makes these situations difficult is not discussing the issue face to face. If possible, I would try and get your daughter to meet with the HR Manager in person asap, with all her facts, paperwork, and financial details for living. She may be able to convince them that she will be coming back, and also to go with her payment plan. She can also challenge under what regulations they are lawfully witholding her SMP at this point in time. It's much easier for HR to deal with a difficult issue if the person is on the phone or on email. HR people are human too, and if they have a woman on maternity leave sobbing across the table, I doubt very much there will be no leeway on this issue. Most employers I have worked for in HR have been reasonable in the amount that gets repaid over a period of time.

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Well,

Things have moved on a fair bit since, my last post.

 

My daughter went to visit her line manager at work yesterday.

NB Her line manager has been very supportive and has been furious about the whole situation .Especially as she was told by HR to keep out of it as “it’s a personal matter”.

 

My daughter took a small “crib sheet” I compiled for her,

I wanted to accompany here but decide for this visit to stay at home.

 

NB the HR Dept is over 100miles away in London so a face to face meeting is not practical.

 

Whilst at work my daughter spoke to the HR manager again, Who Just still wanted to change the subject whenever the Admin error was mentioned and every time my daughter wanted to negotiate a lower amount all she got was “I can’t make that decision”.

Yet as far as we know she came up with the payment plan.

 

During this my daughter intimated she was not happy about all this and was going to raise a grievance.

 

After this HR telecom finished my daughters line manager decide to change direction and she telephoned one of the owners of the company, (also a female). To explain what’s been going on.

And as far as I've been told the owner " Blew her top" amd She said “leave it with me?”

 

NB this Owner of the company was also one of the instigators of the company’s “investor’s in people”.

 

Well within an hour both the line manager and my daughter got an Email.

 

My daughter got an apology from the owner of the way its all been handled.

 

She now will not have to repay anything until she goes back to work.

 

And a report on the whole sorry affair is being compiled for the owner

and in the owners words , "the last thing a new mum needs to do whilst looking after a new baby is to check up on whether her company is doing its job properly !"

 

We will see where this all goes later.

the greivance is presently on hold .

 

------ Next instalment soon. LOL.

Edited by ceedy
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She has been getting a stressed about the whole situation , esp as not being at work you just don't know whats going on !!

And its only about 4 years since she had to go bankrupt, due to debts left by her previous partner.

and she has been gettong on very well managing her finances up til now !! ..

All not been helped by her phone line being down for the last week

 

C.

Edited by ceedy
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Sounds a very positive outcome, well done.

I am not a legal professional or adviser, I am however a Law Student and very well versed areas of Employment Law. Anything I write here is purely from my own experiences! If I help, then click the star to add to my reputation :)

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Maybe its age thing ??

I just don't take any S**T from anyone these days :wink:

I get MAD and then get even !! :-)

plus

I just don't like ANYONE being treated unfairly , probably why I frequent this forum :wink:

 

But when its family... it becomes very personal .. and the opposition better look out!! :wink:..

 

Plus being a part timer , workwise now , I've got the time :wink:.

 

phew better go and sit down !!

 

Chris

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