SMP gone wrong

[xolile]

Hi all, this is my first time posting on this forum even though i have been lurking around for over a year lol. Ok, i need advice on a very pressing issue. I have been on maternity leave since July 1st and have received my normal wages (i work part time) which is about £400 every month. Before i went on maternity leave, i handed in the mat certificate from the midwives together with some other paper work stating how long i intend to be away for etc. to my manager. After a few weeks she said it was ok and that it has been approved but it felt a bit odd because i didn't receive any written confirmation to that effect. Anyway, i didn't stress myself too much because i already had too much stress with the pregnancy so I proceeded to my maternity leave at the appointed time. Yesterday, I got a call and a follow up email from HR saying that they were not aware of my maternity leave and that they've been paying me as if i was still working, also that i was not entitled to any maternity pay so i have to refund over £2400. Well i told them that i filled out the proper forms(damn i should have taken a copy) and handed them in to my manager who is my point of contact and it's unfortunate she didn't process it nor inform them. I have spoken to HMRC and they said that if i am not entitled to SMP, my employer should have given me a form stating why i am not entitled to the payment and i would be able to claim maternity allowance with this form. Please ladies any advice would be highly appreciated but one thing is for sure.....i don't have a dime to pay back.

 

[xxembobxx]

Maybe try moneysavingexpert.com as there are quite a few people knowledgable about the legal aspects.
Do be aware that many people will make comments about the fact you were unaware you were getting paid full pay - how could you not know?
You should have received written confirmation that you weren't entitled to maternity pay as you could have been able to claim maternity allowance - this would depend upon your weekly earnings. You should have asked for written confirmation before you left on maternity leave and as you have no proof of handing in your letter you might struggle to prove you did hand it in.
Work should allow you to pay back money owed at a reasonable rate. Tell them you don't have the money and they should come to a payment plan. I believe they would have to take you to court to actually force you to pay it back at which point you could show you had offered to pay it back and due to your income level you can only offer so much per month.
From now on put everything and get everything in writing. Either e-mail or preferably recorded delivery. If anything is said to you on the phone tell them you have baby brain and could they put it in writing so you can understand it clearly.
If you have house insurance you may have legal cover which will pay for legal assistance, alternatively you can get a free half hour with a solicitor who can advise you on your next step.

 

[Dinah93]

I can't comment on the mess up with SMP but I can on the repayment of wages. When my mum left her last job they kept paying her. She wrote to them several times, she called them, they just kept paying her. She took legal advice and was told that she would absolutely have to pay it back, but because she had made all reasonable efforts to inform them of the error they couldn't demand it be repaid in one go. The minimum the solicitor suggested was 5% of the balance owed per month - but despite it being her employers mistake by not paying it back in one lump sum she would have to pay interest.

You definitely need legal advice, you will have to repay the wages which have been paid in error, but they should have sorted out your SMP. Have you spoken to your manager and have they confirmed what they did with the forms? If they will testify they did the right thing, and it's HR who messed up that's very much on your side.

Why would you not qualify for SMP?

 

[xolile]

Thanks for your reply. I was only told on monday that I don't qualify for SMP based on my earnings so they are issuing an SMP1 form this week(after six months) which I would use to claim from the benefit office. I have also been told by the benefit office that my claim cannot be backdated later than three months which means I would loose payment from the first three months of my maternity leave. I can only pay back what I receive from the benefit office because I will not be left out of pocket because of someone's mistake.
As regards why I didn't know I was getting fully paid. The SMP/MA is about the same amount as my normal take home pay so I assumed that was what I was meant to receive.

 

[xolile]

I can't comment on the mess up with SMP but I can on the repayment of wages. When my mum left her last job they kept paying her. She wrote to them several times, she called them, they just kept paying her. She took legal advice and was told that she would absolutely have to pay it back, but because she had made all reasonable efforts to inform them of the error they couldn't demand it be repaid in one go. The minimum the solicitor suggested was 5% of the balance owed per month - but despite it being her employers mistake by not paying it back in one lump sum she would have to pay interest.

You definitely need legal advice, you will have to repay the wages which have been paid in error, but they should have sorted out your SMP. Have you spoken to your manager and have they confirmed what they did with the forms? If they will testify they did the right thing, and it's HR who messed up that's very much on your side.

Why would you not qualify for SMP?

Thanks for your reply. I have contacted the manager who incidentally has left the company. She said she did all that she was supposed to do. And I believe her because there is someone covering my hours at work. HR advertised for maternity cover, surely they must have known that someone was going on maternity leave pretty soon. I have been advised that they have a legal right to claim the money back but that it is morally wrong for them to do so. Like I said before, I can only pay back what I get from the benefit office....I have been told it is 90% of wages so I will make it up to 100% and pay back depending on the number of months.

 

[Dinah93]

Most solicitors will give 30 mins of free advice before they start charging, I'd advise calling one. Morally, no you absolutely should not be left out of pocket. However legally if they wanted to take it to court you'd have to pay them back. Because your claim can't be back-dated and you have strong evidence that you did tell the company (your manager's testimony, the fact someone else has been brought in as maternity cover) if they took it to court I doubt you'd be made to pay back the loss that they have cost you, but a solicitor could further advise.

I'll point my husband in the direction of the thread, he trained as a solicitor in Ireland but doesn't practice over here, he may or may not have some more advice to give.