Employersafe
9th February 2016

Do I Have To Pay Back Maternity Pay?

Please help!! I am due to go back to work in 2 months’ time. A month ago it was agreed with my manager and HR that I could return to work part time. Now I’ve been there has been a  restructure and I won’t be able to return to my job. I have to apply for a position which they feel is a suitable vacancy. However, they want me to apply for a full time position which I cannot do for childcare reasons. If I refuse this role they have said that I have to pay back the additional maternity pay. Which is money that I no longer have. This is really affecting my health and ruining the end of my maternity leave. What can I do? Also, if I volunteered for voluntary redundancy, would I have to pay back additional maternity pay if I was successful with my application? It does state that I would have to return to work for 3 months after maternity pay in my contract. Thank you.

Pamela Rogerson FCIPD, HR Director of ELAS Business Support answers:      

Generally, when an employer offers maternity pay benefits over and above the statutory minimum they will usually include conditions. In this case, yours appears to be a return to work for three months after maternity leave. However, if you can’t return after maternity leave because of a restructure that has been imposed upon you then a tribunal would look unfavourably on any employer who tried to enforce that clause.

What Should Happen?

A restructure in an organisation can affect all staff irrespective of maternity leave. However, special rules apply to employees on maternity leave who may be selected for redundancy as a result of the restructure. Basically the employer is obliged to offer you any suitable and appropriate vacancies that are available. This requirement takes precedence over offering suitable vacancies to any other employees who have been selected for redundancy.  If the role on offer is full time and you were scheduled to return part time then the “suitability” is in question. However, before all this takes place you need to discuss with your employer and establish why the part time role no longer features in the structure and why you need to apply for another position. If the role exists and the work still needs to be completed then you have a claim for unfair dismissal.

In addition, if you’re to be made redundant then the redundancy calculation will need to be based on the full-time contractual terms applicable when you went on maternity leave, not on the part-time position as this hasn’t come into force yet.


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