# Maternity Benefit: if I don't come back to work afterwards



## deezer (17 Jan 2008)

Hi

Just aquick question, I recently found out that if I don't come back to work after maternity leave I must repay the top up salary paid by my company 100%

Could that be legal?


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## ClubMan (17 Jan 2008)

*Re: Maternity Benefit*

Yes - probably in your contract of employment. Check it.


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## ajapale (17 Jan 2008)

*Re: Maternity Benefit*

Moved from Other Financial Issues to  Work, Careers, Un/employment, Further Education/Training which is where employee rights responsibilities etc are discussed.


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## laoisfan (18 Jan 2008)

*Re: Maternity Benefit*



deezer said:


> Hi
> 
> Just aquick question, I recently found out that if I don't come back to work after maternity leave I must repay the top up salary paid by my company 100%
> 
> Could that be legal?



yes i believe it is legal.

however, you could go back to work for a while, say 4-6 weeks, then hand in your notice (unless you have to be at work for a specified time after maternity leave).


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## deezer (18 Jan 2008)

*Re: Maternity Benefit*

Thanks for the info.

If you leave within the first 3 months of returning to work you have to pay 100% of the top up, within the 3-6 months 75% etc, so basically you need to stay a year and a day after you have returned to work to not pay back the top up.

Our contracts were amended during the year, and we all had to sign the new version, however this was not advised on the contract we signed, can it still in enforced?


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## ClubMan (18 Jan 2008)

*Re: Maternity Benefit*



deezer said:


> Our contracts were amended during the year, and we all had to sign the new version, however this was not advised on the contract we signed, can it still in enforced?


I don't understand - was this phased clawback of the maternity leave topup salary payment included in the original or amended contract that you signed? What exactly does your current contract state about this? If you are saying that they are raising this clawback rule out of the blue and outside the scope of the contract that you signed then presumably it would be questionable as to whether or not they could enforce it.


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## ronny78 (18 Jan 2008)

*Re: Maternity Benefit*

Hi deezer,

At our company the contracts don't specify the terms of the maternity benefit they will offer explicitly as they only pay certain grades of employees their salaries while on leave. To cover the same issue that you are discussing, the employee has to sign a form, or contract really, prior to going on maternity leave that if they do not return to work for a minumum period of 6 months after their maternity leave they must repay 100% of the salary topped up by the company. They have similar rules in place regarding paying back education assistance funds.

If your initial contract spells out exactly the terms of maternity leave and salary then it would be worth querying it as the change perhaps should be applicable only to new contracts. However if it is vaguely mentioned and the subject of paid leave is not detailed, then I expect they could enforce something similar to what we have as employees go on leave and that would be legal. This would effectively be what they are doing up front now by updating the contracts.

R-


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## NiallP (18 Jan 2008)

*Re: Maternity Benefit*

Deezer,

If you don't intend staying for a year upon your return to work, you could of course refuse the entirely discretionary top-up your employer is offering you.

I realise that this is probably off topic, and without wishing to offend Deezer who is legitimately inquiring as to her rights, but do people not think that it is unethical to sign up for a benefit and then refuse to carry through your side of the bargain.

There seems to be a pervasive attitude that employees are (rightly) entitled to force an employer to rigidly abide by their obligations - whilst, however, refusing to observe any obligations owed to an employer - e.g notice periods, loyalty clauses etc.

I for one am sick of the "sure its a Company, they can afford it" mentality. 

Apologies - rant over. I'd just like to point out that this is not directed at anyone in particular (and is grossly off topic) but it is something that I would like to hear other people's view on.


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## deezer (18 Jan 2008)

*Re: Maternity Benefit*

This claw back was not on the origianl contact or the amended contract that was signed.  The only reference to the maternity package was that the maternity leave was extended to an extra four weeks paid leave......that was it....nothing anywhere about repaying anything... and nothing specific to grades etc either...

I know I can refuse the top up salary but my concern is that if there was nothing referencing this on the contract signed, surely it cannot be enforced by the company??!


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## ClubMan (18 Jan 2008)

*Re: Maternity Benefit*

You may need independent, professional legal advice on this from somebody versed in employment contract law.


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## ronny78 (18 Jan 2008)

*Re: Maternity Benefit*

I think Clubman is right on the independent advice.

However just one thing I noticed in our policy that was clarified, where the policy read paid leave and was updated recently to refer to an additional 4 weeks paid leave, the company have said they mean paid by social welfare, i.e. the maximum of €280 per week in benefit.


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## Purple (18 Jan 2008)

*Re: Maternity Benefit*



NiallP said:


> Deezer,
> 
> If you don't intend staying for a year upon your return to work, you could of course refuse the entirely discretionary top-up your employer is offering you.
> 
> ...


 Very good points.


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## shipibo (18 Jan 2008)

*Re: Maternity Benefit*

If the new contract does not state explicitely this change, and it is a major change to previous policy, or point to terms of reference guide in signed contract, you will have a strong case.


1. Were you informed of new clause before you took maternity leave.

2. How many people have previously taken leave under new clause, has company ever needed to claw back wages ??

It this stated in any company policy documents on your HR website ...


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## ronny78 (18 Jan 2008)

*Re: Maternity Benefit*

Hmm, thought responses to your rant NiallP might be removed...
However I completely agree with you and think topped up maternity pay is a significant benefit and don't have a problem with the payback clauses.
I guess though in deezer's case she is saying that it was never her part of the bargain to keep until these changes were introduced.


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## NiallP (18 Jan 2008)

*Re: Maternity Benefit*

Deezer,

The dicretionary top-up offered by your employer is independant to your contract of employment. In other words, your right to paid a premium (above your statutory entitlement that you receive from the state) is derived from the Company's maternity policy as opposed to your contract of employment.

This in turn permits flexibility on the part of the employer as to the additional benefits it offers- or, as the case may be, decides not to offer any more. This flexibility is precisely why maternity entitlements are usually not set out in employment contracts. Instead a contract will usually remain silent or will refer you to the Company;s maternity pay policy ("which may be amended from time to time")

The simple fact is that your entitlement to a "top-up" maternity payment is then entirely dependant on your obligation to remain in the Company for a year. In effect, it is an inherently reasonable loyalty bonus.

Ronny 78,

Your additional "extra 4 weeks" paid leave derives from the Maternity Protection Act 1994 (extension of Periods of Leave) Order 2006 - a not from the munificence of your employer. After 1 March 2007, you (and every other employee in Ireland) are entitled to 26 weeks paid leave. The legally mandated payment is exactly as you state - i.e. comes from the Department of Social Welfare.

An employer is under no legal obligation to pay an employee absent on maternity leave, unless seperately agreed with that employee.  All that is required is that the job is kept open.


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## deezer (18 Jan 2008)

*Re: Maternity Benefit*

thanks to all for the advice


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## ronny78 (18 Jan 2008)

*Re: Maternity Benefit*



NiallP said:


> Deezer,
> 
> Ronny 78,
> 
> Your additional "extra 4 weeks" paid leave derives from the Maternity Protection Act 1994 (extension of Periods of Leave) Order 2006 - a not from the munificence of your employer.



I obviously didn't make myself clear......the word paid was taken by many employees in our policy to mean that everyone would have their wages topped up automatically. The issue was only raised when the employer updated the policy to reflect the additional statutory 4 weeks. Hence the clarification by our employer that they were referring to benefit payment.

4 additional weeks from the munificence of the employer ?!  If only !


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## dodo (18 Jan 2008)

deezer said:


> Hi
> 
> Just aquick question, I recently found out that if I don't come back to work after maternity leave I must repay the top up salary paid by my company 100%
> 
> Could that be legal?


I think if you come back to work for a week then leave, you should be ok I think


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## shipibo (18 Jan 2008)

*Re: Maternity Benefit*



NiallP said:


> I for one am sick of the "sure its a Company, they can afford it" mentality.
> 
> Apologies - rant over. I'd just like to point out that this is not directed at anyone in particular (and is grossly off topic) but it is something that I would like to hear other people's view on.




You have a point, maybe you should start a thread


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## Midsummer (18 Jan 2008)

I assume the company asked you to sign a maternity contract before you went on maternity leave ? In which case if you break it (i.e. don't return after your maternity leave and don't pay back your top-up salary) then you're in breach of contract.

Technically they would have to sue you I suppose to get the money back and the question you would have to ask yourself is a) would they bother doing this b) would you want this hanging over your head either financially or morally !

Unfortunately maternity contracts are common place these days and while it seems like a good benefit it's actually an easy way for a company to keep you on the same salary for a couple of years at least. (Been there !)

I would advise you to ring either the citizens advice bureau or the equality authority - have a copy of the new contract you signed (if you didn't sign a maternity contract - this may have been a 1 page form before you left on maternity leave) to hand so they can see what's in it.  If you signed it - then it's applicable.

M


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## ClubMan (18 Jan 2008)

dodo said:


> I think if you come back to work for a week then leave, you should be ok I think


Did you actually read the start of this thread?


deezer said:


> Thanks for the info.
> 
> If you leave within the first 3 months of returning to work you have to pay 100% of the top up, within the 3-6 months 75% etc, so basically you need to stay a year and a day after you have returned to work to not pay back the top up.
> 
> Our contracts were amended during the year, and we all had to sign the new version, however this was not advised on the contract we signed, can it still in enforced?


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## shipibo (19 Jan 2008)

ClubMan said:


> Did you actually read the start of this thread?




He did, and made a suggestion. just because HR state new policy does,nt automatically make it legal.


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## shipibo (19 Jan 2008)

Midsummer said:


> I assume the company asked you to sign a maternity contract before you went on maternity leave ? In which case if you break it (i.e. don't return after your maternity leave and don't pay back your top-up salary) then you're in breach of contract.
> 
> Technically they would have to sue you I suppose to get the money back and the question you would have to ask yourself is a) would they bother doing this b) would you want this hanging over your head either financially or morally !
> 
> ...




Never dawned on me they would make you sign new contract, that could change everything.


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