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Michigan13
31st May 2014, 21:39
Hi all..
Am wondering whether anyone has any advice, I'm currently 18+ weeks pregnant and employed through an agency but paid via an umbrella company. I have been with my agency for the last 3 years on a long term contract within the same establishment. Recently I let my Agency Rep know I was pregnant, she didn't sound too happy despite saying the obligatory congratulations and said something about speaking to head office. Every time I've called her since she's apologised and said she would get back to me to no avail. (I first informed her on the 13th May!)

Yesterday I received a letter from the umbrella company I am paid by, stating that they have ended my employment with them because: 'We recently reviewed your account and found that you aren’t getting the most out of [said company].

Having discussed this with [employment agency], neither of us feel that an Umbrella service is best suited to you at this stage. We have ended your employment with us to allow you to transfer to [employment agency's] PAYE payroll.'

As far as I'm aware this suggests that both parties have just loopholed their way out of having to pay me SMP due to ending my contract before the 15th week prior to my due date (the 28th October) Meaning in line with agency workers rights I would no longer be eligible!

I have yet to begin the proceedings required to transfer to my agency's PAYE in the off chance that something can be done about this, because as far as am aware doing so would mean I willingly transferred to another employer? I'm due back at work on Tuesday but am thinking of postponing until I know where I stand.

I am actually so angry I'm thinking of quitting the agency - and ultimately my job- altogether.. Why should they be making money out of me only to fob me off onto the benefits system once I go on maternity leave! I might as well take myself off to the job centre sooner rather then later! Lol :S :(

Any suggestions? ..is there anything I can do!?

LisaContractorUmbrella
2nd June 2014, 07:31
Quite simply your umbrella company has broken the law - they have exactly the same statutory obligations as any other employer - provided that you meet the criteria https://www.gov.uk/maternity-pay-leave/overview you are entitled to maternity leave and pay. You could also have a case for unfair dismissal - I believe that termination of an employment contract due to pregnancy is automatic unfair dismissal.

TheFaQQer
2nd June 2014, 08:44
Quite simply your umbrella company has broken the law - they have exactly the same statutory obligations as any other employer - provided that you meet the criteria https://www.gov.uk/maternity-pay-leave/overview you are entitled to maternity leave and pay. You could also have a case for unfair dismissal - I believe that termination of an employment contract due to pregnancy is automatic unfair dismissal.

This.

Take professional advice as soon as possible, rather than relying on CUK.

GazCol
2nd June 2014, 10:19
This is going to make the news...

LisaContractorUmbrella
2nd June 2014, 10:27
This is going to make the news...

Yep and not in a good way! Be interested to know which umbrella company it was

TheFaQQer
2nd June 2014, 10:42
This is going to make the news...

Some years back, when I was permie, we had a(nother) round of redundancies and a friend of mine was due for redundancy (with a reasonable pay off). The day that she had the meeting to be made redundant, she had a meeting with her manager booked for the afternoon to tell him that she was pregnant. The pregnancy and redundancy were absolutely NOT connected.

It took some legal wrangling, but her pay off for leaving was significantly higher than it would have been, just because there might have been a perception that she was being laid off because she was pregnant.

If this company have genuinely canned the OP because they were pregnant, I hope she takes them to the ****ing cleaners.

NickNick
2nd June 2014, 11:47
Some years back, when I was permie, we had a(nother) round of redundancies and a friend of mine was due for redundancy (with a reasonable pay off). The day that she had the meeting to be made redundant, she had a meeting with her manager booked for the afternoon to tell him that she was pregnant. The pregnancy and redundancy were absolutely NOT connected.

It took some legal wrangling, but her pay off for leaving was significantly higher than it would have been, just because there might have been a perception that she was being laid off because she was pregnant.

If this company have genuinely canned the OP because they were pregnant, I hope she takes them to the ****ing cleaners.

Hmm, sounds remarkably like my wife that does.

LisaContractorUmbrella
2nd June 2014, 12:17
Some more info for the OP here: http://www.maternityaction.org.uk/sitebuildercontent/sitebuilderfiles/pregnancydiscrimination.pdf

Michigan13
2nd June 2014, 12:17
Thank you all for your responses :)
I'm under the impression that my agency and/or the umbrella company are hoping I was unaware of the Agency Workers Regulations ...which funnily enough the guy that I spoke to at ACAS this morning had no idea it existed until I directed him to it (prior to that he actually tried to inform me that I had no rights to SMP!?)

Am not sure if the Umbrella company are going to play dumb and claim that terminating my employment with them has nothing to do with my pregnancy seeing as I hadn't physically informed them yet nor provided a written statement. Yet seeing as I had informed my Rep and the letter I received states that the Umbrella companies decision had been made in conjunction with my agency surely it would have been in my best interests for the pregnancy to be mentioned prior to any decisions being made!

LisaContractorUmbrella: I didn't think agency workers were able to claim unfair dismissal :( ..had a look into that route this morning. Or is it applicable due to my employment status with the Umbrella company?

Anyway regardless of whether the dismissal can be flagged as discriminatory they have breached their terms and conditions regarding how much notice I should have been given anyway.

In regards to seeking professional advice I was informed by ACAS to request a grievance meeting and contact the umbrella company and/or agency to inform them of my suspicions and state that a movement over to my agency's PAYE will be done unwillingly (Not sure whether that's professional enough) ..I will be returning to work tomorrow and intend to inform the school of this issue but don't intend to sign up to my agency's PAYE as of yet .


I finally received a response from my rep today - stating nothing more aside from the fact that I need to carry out a risk assessment; In response I emailed my agency, mentioned the date in which I originally informed the rep of my pregnancy and requested a copy of my rights and entitlements to antenatal leave/pay and maternity pay. I am waiting to hear back from her before doing anything more or confronting anybody.

I have also drafted an email to the umbrella company (on hold till my rep responds) outlining their notice breach but haven't mentioned what I think their reasons for terminating my employment are.. I intend to do that after their initial response as I don't want them to be able to claim that I've made unjust accusations until I'm definitely sure that their actions have affected my eligibility.

Sorry for the really lengthy messages! Just never had to deal with something like this before and nobody else to seek advice from...

LisaContractorUmbrella
2nd June 2014, 12:26
The umbrella company is your employer and ALL the rules which apply to any other employer apply to them. If you move to the agency via PAYE you will probably not have any entitlement to Maternity pay as you will be unlikely to have been in their employment long enough at the time of the birth. I would suggest that you contact ACAS again and explain that you are an employee of the umbrella company, having signed a contract of employment, and get them to fully explain your rights and what your options are.

cojak
2nd June 2014, 13:09
Sorry for the really lengthy messages! Just never had to deal with something like this before and nobody else to seek advice from...

Don't worry about that :) - I'm sure that our posters will be able to point you in the right direction for help.

franktouch
3rd June 2014, 13:47
I'd go to the DailyMail if I was you, they would love a story like this.

But before it would be best to call a solicitor, i'm sure they'll have a quick chat with you for free.

Michigan13
5th June 2014, 11:55
Haven't confronted the umbrella company because I wanted to speak to my agency rep first.. Who as usual has been taking ages to get back to me... Still haven't transferred my pay over but finally spoke to my agency rep today and she stated that Because I'm contracted to the agency and paid by timesheet I'm not entitled to statutory maternity anyway, therefore transferring to the agency's PAYE wouldn't make any difference.

I'm i right to not believe her..?

ACAS who i spoke to again today say that its based on my national insurance contributions.. And suggested i speak to the inland revenue, The inland revenue couldnt tell me what they were.. But i have been making them and my pay is way over the Lower earnings threshold most weeks but im not sure how far back im supposed to take them into account!? ...somewhere says the last 8 weeks upto the 15th week qualification period..? Which would be last week onwards.. So again i THINK I should be eligible...

So confused! Lol.. :S

cojak
5th June 2014, 11:59
Haven't confronted the umbrella company because I wanted to speak to my agency rep first.. Who as usual has been taking ages to get back to me... Still haven't transferred my pay over but finally spoke to my agency rep today and she stated that Because I'm contracted to the agency and paid by timesheet I'm not entitled to statutory maternity anyway, therefore transferring to the agency's PAYE wouldn't make any difference.

I'm i right to not believe her..?

ACAS who i spoke to again today say that its based on my national insurance contributions.. And suggested i speak to the inland revenue, The inland revenue couldnt tell me what they were.. But i have been making them and my pay is way over the Lower earnings threshold most weeks but im not sure how far back im supposed to take them into account!? ...somewhere says the last 8 weeks upto the 15th week qualification period..? Which would be last week onwards.. So again i THINK I should be eligible...

So confused! Lol.. :S

Yes you are right not to believe her, but don't take our advice - go to your Citizen's Advice Bureau - they will be able to help with this.

eek
5th June 2014, 12:04
Yes you are right not to believe her, but don't take our advice - go to your Citizen's Advice Bureau - they will be able to help with this.

+1. This is a mess based on people messing you around. You need someone to get your story straight to allow you to identify the correct course of action and ensure that you can explain clearly why what they are doing is wrong.

And the Citizen's Advice Bureau is definitely the correct place to begin.

If you have legal cover with your home insurance you may find they have a helpline that can help...

GazCol
5th June 2014, 12:06
Haven't confronted the umbrella company because I wanted to speak to my agency rep first.. Who as usual has been taking ages to get back to me... Still haven't transferred my pay over but finally spoke to my agency rep today and she stated that Because I'm contracted to the agency and paid by timesheet I'm not entitled to statutory maternity anyway, therefore transferring to the agency's PAYE wouldn't make any difference.

I'm i right to not believe her..?

ACAS who i spoke to again today say that its based on my national insurance contributions.. And suggested i speak to the inland revenue, The inland revenue couldnt tell me what they were.. But i have been making them and my pay is way over the Lower earnings threshold most weeks but im not sure how far back im supposed to take them into account!? ...somewhere says the last 8 weeks upto the 15th week qualification period..? Which would be last week onwards.. So again i THINK I should be eligible...

So confused! Lol.. :S

You're eligible - if you don't want to start at the CAB you might find you've got access to a legal helpline through your motor or home insurance that can give advice on employment issues.

edit - really what Eek said.

LisaContractorUmbrella
5th June 2014, 12:46
I have asked HMRC for comment on this subject - will let you know when I hear anything :smile

Michigan13
5th June 2014, 15:01
Am going to get onto the CAB tomorrow, just reluctant to contact them as I have a feeling that like the people at ACAS they're going to be just as confused as I am! Seems like somebodies trying to pull a fast one, just got to work out who so I can take the correct course of action!

Think I'm definitely going to have to seek the advice of a solicitor or something.

Thanks again to everyone, and thanks Lisa, will be interested to hear what they say also...

ASB
5th June 2014, 20:14
https://www.gov.uk/statutory-maternity-pay-how-different-employment-types-affect-what-you-pay

the link might help. Or it might just confuse things more.

eek
5th June 2014, 20:24
Am going to get onto the CAB tomorrow, just reluctant to contact them as I have a feeling that like the people at ACAS they're going to be just as confused as I am! Seems like somebodies trying to pull a fast one, just got to work out who so I can take the correct course of action!

Think I'm definitely going to have to seek the advice of a solicitor or something.

Thanks again to everyone, and thanks Lisa, will be interested to hear what they say also...

Let's break it down into bullet points then

1) You are employed by a company (an umbrella) who provide your services via an agency to a 3rd party.
2) You have worked with the umbrella long enough to qualify for maternity pay.
3) You are pregnant
4) knowing that you are pregnant the umbrella has / is trying to make you redundant to avoid maternity pay.

While the above may not be 100% right I think breaking what you originally wrote into short bullet points will make it far easier to understand..

Scruff
5th June 2014, 22:00
Thursday night is sockie night!

eek
6th June 2014, 05:55
Thursday night is sockie night!

Any evidence for that accusation.....

kal
6th June 2014, 07:39
Let's break it down into bullet points then

1) You are employed by a company (an umbrella) who provide your services via an agency to a 3rd party.
2) You have worked with the umbrella long enough to qualify for maternity pay.
3) You are pregnant
4) knowing that you are pregnant the umbrella has / is trying to make you redundant to avoid maternity pay.

While the above may not be 100% right I think breaking what you originally wrote into short bullet points will make it far easier to understand..

I am surprised they are even trying this, most companies are scared to death of canning someone if they're pregnant. At my last permie place they were having a round of redundancies. One of the ladies was pregnant and the dev manager joked that her job was safer than the MD's as no one would dare make her redundant!

Take em to the cleaners if they are indeed doing this because of your pregnancy.

LisaContractorUmbrella
6th June 2014, 07:58
Let's break it down into bullet points then

1) You are employed by a company (an umbrella) who provide your services via an agency to a 3rd party.
2) You have worked with the umbrella long enough to qualify for maternity pay.
3) You are pregnant
4) knowing that you are pregnant the umbrella has / is trying to make you redundant to avoid maternity pay.

While the above may not be 100% right I think breaking what you originally wrote into short bullet points will make it far easier to understand..

You are exactly right eek - in my mind there is no doubt whatsoever that the OP qualifies for maternity pay but hopefully I can get a written clarification from HMRC and I will make sure that it's posted on the forum for future reference

Michigan13
6th June 2014, 08:01
Let's break it down into bullet points then

1) You are employed by a company (an umbrella) who provide your services via an agency to a 3rd party.
2) You have worked with the umbrella long enough to qualify for maternity pay.
3) You are pregnant
4) knowing that you are pregnant the umbrella has / is trying to make you redundant to avoid maternity pay.


Which was exactly my thinking in the first place (despite the lengthy, disjointed messages!). The issues though are I'm not sure if point 4 is fact, and doubt they'll admit it! AND I'm not sure what to do about my method of pay in the meantime. :S

Anyway, I have decided that today's the day I confront the Umbrella company.. Either my agency Rep is in on it or she doesn't have a clue what she's talking about! But regardless I think discussing the situation with her any longer is a waste of time.

Only problem now is my other half thinks the letter I've drafted is too confrontational!? :S

LisaContractorUmbrella
6th June 2014, 08:06
Which was exactly my thinking in the first place (despite the lengthy, disjointed messages!). The issues though are I'm not sure if point 4 is fact, and doubt they'll admit it! AND I'm not sure what to do about my method of pay in the meantime. :S

Anyway, I have decided that today's the day I confront the Umbrella company.. Either my agency Rep is in on it or she doesn't have a clue what she's talking about! But regardless I think discussing the situation with her any longer is a waste of time.

Only problem now is my other half thinks the letter I've drafted is too confrontational!? :S

When you email the umbrella company all you need to do is add links which demonstrate the legal position (there are a couple in the thread) and then state your belief that your 'dismissal' qualifies as automatically unfair and that, if the situation is not resolved and they do not pay Mat Pay then you will have no choice but to refer the matter to an Employment Tribunal - no need to be aggressive - just state the facts and see what they come back with and then go from there

eek
6th June 2014, 08:10
Which was exactly my thinking in the first place (despite the lengthy, disjointed messages!). The issues though are I'm not sure if point 4 is fact, and doubt they'll admit it! AND I'm not sure what to do about my method of pay in the meantime. :S

Anyway, I have decided that today's the day I confront the Umbrella company.. Either my agency Rep is in on it or she doesn't have a clue what she's talking about! But regardless I think discussing the situation with her any longer is a waste of time.

Only problem now is my other half thinks the letter I've drafted is too confrontational!? :S

I would say 4 is correct based on


Recently I let my Agency Rep know I was pregnant, she didn't sound too happy despite saying the obligatory congratulations and said something about speaking to head office.

But keep things simple in bullet points and ensure they know that you know the law (basically what Lisa says above)...

Michigan13
6th June 2014, 08:38
This is probably getting really annoying for you guys, I actually cringe at the level of which I am relying on your assistance lol :S

..BUT, here's a copy of the letter I have drafted already. The sections I have highlighted in bold would probably be better reworded, with inserts that better demonstrate my legal position as stated by Lisa.



Dear (whomever it may concern)

I am writing in regards to a later received from yourselves on the 31st of May 2014 (dated 29/05/2014) in which you state that you have ended my employment with yourselves in order to allow me to transfer to (agency's) PAYE payroll. This letter follows an email received on the 28th of May 2014 in which you state that you have recently reviewed my account and found that i wasn't getting the most out of (umbrella company) and based on discussions with (agency), recommend that I transfer to their PAYE payroll instead.

I would like to draw to your attention that not only do I not wish to move from (said company's) Umbrella service to (agency's) PAYE payroll and would like to appeal that decision, but that you are also in breach of section 6.2 of your terms and conditions which state that you 'The Company' must give the following periods of prior written notice to terminate my employment:- two weeks’ notice for continuous employment for more than one month but less than 2 years; or three weeks’ notice for continuous employment of more than 2 years but less than three years. My first assignment with yourselves was on the 3/7/2011, which implies that I have been employed by yourselves for almost 3 years thus should have been entitled to at least 3 weeks notice.

Unfortunately the period between your email and the received letter does not meet this criteria nor had you consulted with myself as to why both yourselves and (agency) feel that an Umbrella Service isn't best suited to me at this stage. I feel that it would have been in my best interests had you done so, particularly as I had recently informed (Agency rep) at (agency), on the 13th May 2014, that I am pregnant and would have assumed that this should have been brought up by (agency) whilst they were in consultation with yourselves about terminating my employment with (said company). Had my employment not been terminated I would have been contacting you shortly to provide a copy of the MATB1 form that I will be due to receive in a weeks time in order to verify my pregnancy and confirm my expected week of confinement.

I am under the impression that in ending my employment with yourselves without prior notice or agreement from myself you have directly affected my eligibility for Statutory Maternity Pay, I would therefore like to make a formal complaint as well as request some indication of whether this situation can be rectified. I would appreciate if this matter could be resolved sooner rather then later so I can continued being paid for my ongoing contract with (School), I will continue to carry out my duties as normal but do not accept the changes, therefore I would be much obliged if you could contact me within the next 7 days.

if the outcome of this situation is not satisfactory I will be seeking legal advice.

Kind regards,

(Me)

Am thinking this may be rather long winded.. Like almost everything I write! (As you've probably noticed!) :S

Michigan13
6th June 2014, 08:39
But keep things simple in bullet points

Lol...

LisaContractorUmbrella
6th June 2014, 08:57
Try this:

Dear Sirs,

You recently terminated my employment citing that my interests are not best served by working with an umbrella company and that I would be better served working directly for [the agency]. The Contract of Employment that I signed states quite clearly that you are required to give me 3 weeks notice of termination of employment and, as this was not given, you are in breach of contract.

I am sure you are aware that I am pregnant as I advised [the agency] on 13th May; if they did not advise you for any reason please accept this email as written confirmation. The law states that, provided I meet certain criteria, I am entitled to receive Statutory Maternity Pay from my employer. As I work through [umbrella company] under a Contract of Employment and have done for a period of almost 3 years the criteria has been met and you have a legal obligation to me.

I look forward to receiving written confirmation, by [date of your choosing] that your decision to terminate my employment has been reversed and that you will be making SMP payments to me as required by law.


Leave it like that (or something similar) and just see what they come back with

HTH

ASB
6th June 2014, 10:22
Well drafted Lisa.

A little O/T how do you deal with SMP ?

As I understand it you can reclaim 92% of the cost from the government; I rather imagine your NI payments don't allow you the 103% rate :-).

So, in effect you are needing to absorb the 8% from your fee. Obviously you will have factored this in across the collective employees and overall at any given point if is probably a fairly minor burden and I am sure there are loads of stats out there to enable you to make a decent guess at what it will be and set your charges accordingly.

So that is how I imagine it would all work in practice for an umbrella.

But, what is SMP based on ? For the first 6 weeks it is 90% of average weekly earnings then it drops.

Would I be correct in assuming that the average weekly earnings are what is paid and subject to tax/ni ?

(I only ask because I am aware that some umbrellas pay based on minimum wage plus a bonus due to the paying between assignments thing).

I'm just curious that's all.

Scruff
6th June 2014, 10:35
Thursday night is sockie night!

Just a random non-sequitur... (to be frank, I had intended posting into a different thread, and it was in my Cut'nPaste buffer) :glasses

LisaContractorUmbrella
6th June 2014, 12:22
Well drafted Lisa.

A little O/T how do you deal with SMP ?

As I understand it you can reclaim 92% of the cost from the government; I rather imagine your NI payments don't allow you the 103% rate :-).

So, in effect you are needing to absorb the 8% from your fee. Obviously you will have factored this in across the collective employees and overall at any given point if is probably a fairly minor burden and I am sure there are loads of stats out there to enable you to make a decent guess at what it will be and set your charges accordingly.

So that is how I imagine it would all work in practice for an umbrella.

But, what is SMP based on ? For the first 6 weeks it is 90% of average weekly earnings then it drops.

Would I be correct in assuming that the average weekly earnings are what is paid and subject to tax/ni ?

(I only ask because I am aware that some umbrellas pay based on minimum wage plus a bonus due to the paying between assignments thing).

I'm just curious that's all.

Your assumptions are right - as with any other employer we can only reclaim 92% so the other 8% comes from our bottom line. It is based on average earnings over a set period - we use Sage payroll so it's calculated for us - it definitely shouldn't be based on minimum wage. I understand that there are some companies that deduct an amount from their workers which is then paid back as SMP/SSP etc but this in no way covers their statutory obligations and would upset HMRC no end

original PM
6th June 2014, 14:09
Your assumptions are right - as with any other employer we can only reclaim 92% so the other 8% comes from our bottom line. It is based on average earnings over a set period - we use Sage payroll so it's calculated for us - it definitely shouldn't be based on minimum wage. I understand that there are some companies that deduct an amount from their workers which is then paid back as SMP/SSP etc but this in no way covers their statutory obligations and would upset HMRC no end

Hmm - most brollies pay you the minimum wage and then a 'bonus' based on what is left of your invoice value after they have taken out the minimum salary and statutory deductions.

So when you are not working there is no 'invoice value' and so therefore SMP will be based on salary which is minimum wage.

When I was working with a brolly in the past I am sure SMP was literally the statutory government minimum.

ASB
6th June 2014, 15:59
So when you are not working there is no 'invoice value' and so therefore SMP will be based on salary which is minimum wage.

I think there is a potential issue there; but the rules are those set by HMG. I believe SMP is based on the average of the last 8 weeks. (For the first 6 weeks).

It seems that there is the potential to be disadvantaged if out of contract. But that is no different to somebody who happens to be out of work (actually better since I don't think if out of work SMP would apply).

Michigan13
6th June 2014, 16:36
Thank you Lisa (again) ..I used your template to amend my version to prevent it from being so lengthy! Lol

Had an email back from the senior employee care advisor stating that he has passed my query onto their compliance team, who will be back in touch in due course.

Fingers crossed the outcome is a positive one! Will keep you updated :)

LisaContractorUmbrella
9th June 2014, 07:25
Thank you Lisa (again) ..I used your template to amend my version to prevent it from being so lengthy! Lol

Had an email back from the senior employee care advisor stating that he has passed my query onto their compliance team, who will be back in touch in due course.

Fingers crossed the outcome is a positive one! Will keep you updated :)

Glad to help :smile

Michigan13
11th June 2014, 09:06
Thank you everyone for all your help and advice :)
Wanted to give you an update before I'm off on my merry way..

I received a phone all on Monday (literally just after my 20wk scan) from the umbrella company who informed me that the decision had been rescinded! I received an email yesterday to confirm this. I'm back on their books.. Will be entitled to full SMP and should send my Matb1 in as soon as I receive it.. Happy days! :D

Thanks again... And best wishes x

TheFaQQer
11th June 2014, 09:16
It's amazing how quickly companies change their minds once they realise that you're prepared to take decent advice!

BillHicksRIP
11th June 2014, 10:39
Bravo to all involved.

LisaContractorUmbrella
12th June 2014, 07:03
Excellent news - well done :yay:

ASB
12th June 2014, 10:53
Thank you everyone for all your help and advice :)
Wanted to give you an update before I'm off on my merry way..

I received a phone all on Monday (literally just after my 20wk scan) from the umbrella company who informed me that the decision had been rescinded! I received an email yesterday to confirm this. I'm back on their books.. Will be entitled to full SMP and should send my Matb1 in as soon as I receive it.. Happy days! :D

Thanks again... And best wishes x

:hug:

Excellent result.