Statutory maternity pay (SMP) must be paid to a pregnant employee who has been continuously employed by the employer for at least 26 weeks, up to the week before the 14th week before the week containing the expected birth. But does this 26 weeks include periods of unpaid work experience?
A firm of solicitors thought their office junior (OJ) was not entitled to SMP, as she was only employed by the firm from 14 August 2015 to 31 December 2015, a period of less than 6 months. However, OJ undertook a year of work experience with the same firm from August 2014 to 13 August 2015. During that period OJ was paid a weekly allowance of £35 by the government body which organised the work experience, and the legal firm voluntarily topped up her money by £15 per week.
The office manager of the legal firm claimed that OJ did not become an employee until 14 August 2015, but the HMRC showed OJ was on the firm’s payroll from at least April 2015. The firm claimed this was a mistake, but other aspects of OJ’s duties indicated that she was performing real work during the period of work experience and was not just work-shadowing. At no time was OJ provided with an employment contract.
The legal firm also argued that SMP was not due as OJ had not provided proper notice of her pregnancy on the form MAT B1. The tribunal ruled that the from MAT B1 was not necessary for proper notice to be given to the employer, a verbal notice was sufficient.
The lessons from this case are:
- review the terms and conditions for all work experience students;
- only put individuals on the payroll if their pay level requires that; and
- have all employees sign an employment contract.
Written by the Tax Advice Network