Hello again and welcome back to our case of the week. This week, we  look at whether a Claimant was entitled to enhanced maternity pay after signing a new contract with terms which were less favourable and not drawn to her attention.

Those that missed our last case update of the dismissal of the Christian actress and whether it was discriminatory can find it here.

This week’s case is Miss K Thomas v Maximus UK Services Ltd. The Claimant was employed as an operations manager by the Respondent who provides employment and skills support for disabled people.

The Respondent was formed as a new legal entity made up of ‘Remploy Limited’ and ‘MAXIMUS People Services’ with all existing employees being transferred by way of TUPE on 1st April 2020.

The Claimant was employed by Remploy Limited from 2019 and was issued with a Remploy contract which included a contractual term that she was entitled to 26 weeks maternity leave at 90% of her contractual pay.  The same term in the Maximus T&Cs referred to a family friendly policy that statutory maternity pay was payable for up to 39 weeks which was calculated at 90% average weekly earnings for the first 6 weeks and the remaining 33 weeks at the rate set by the government for the relevant tax year.

During the TUPE transfer a letter confirming company changes was sent to employees. It explained that if an employee changed roles in the future the T&Cs would be explained to applicants during the recruitment process which would be made clear so the individual would be given the opportunity to decide if the move to another role was right for them.

In May 2021, the Claimant was promoted which came with a significant pay increase and she was issued with a Maximus contract which she signed. In December 2021, she informed the Respondent she was pregnant and later asked for a breakdown of her expected maternity leave pay. This was when she discovered she was only entitled to the less favourable Maximus maternity pay.

The Claimant filed a grievance which was not upheld and while still employed brought claims of unlawful deduction of wages and pregnancy and maternity discrimination.

The Tribunal

The relevant sections of the Employment Rights Act are ss13 and 27. It was not disputed enhanced maternity pay was capable of being defined as ‘wages’, however the enhanced maternity pay was non-contractual so for the Claimant to succeed it needed to fall within the definition of ‘or otherwise’ under s27(1)(a).

The Judge was satisfied a legal right arose for the Respondent to exercise its discretion as the wording in the Claimant’s contract included “may” be entitled to family friendly provisions. The Judge accepted the Claimant was arguing that the Respondent exercised that discretion unreasonably and at no stage did Maximus point out to her the severe detriment of losing a significant benefit under the Remploy contract if she accepted the promotion.

The Claimant withdrew her claim for pregnancy and maternity discrimination and the claim for unlawful deduction of wages succeeded.

Takeaway Points

The case of Scally v Southern Health And Social Services Board is a point of reference in this case and cases of this type. Scally held that an employer has an implied duty to take reasonable steps to bring to an employee’s attention, a right they have that would be lost unless they took certain action and the employee cannot reasonably be expected to be aware of this potential loss of right unless the term is brought to their attention.

The three elements to satisfy the above Scally term are:

  1. The terms must not have been negotiated with the employee.
  2. The term of the contract offers a valuable benefit which requires the employee to exercise their entitlement to it.
  3. The employee cannot reasonably be expected to be aware of the term unless it is brought to their attention.

Another point to note from this case, is the importance of using wording in letters to employees that is clear, so as to avoid confusion but also to avoid misleading the employee.

If you or someone you know are dealing with any of the issues mentioned above, please contact a member of our team who will be able to assist.