Benefits and Maternity
Discussion
Aloha,
My girlfriend's employer operates an annual bonus scheme, of which she and the others in the same role are members. This is apparently a purely profit-based scheme, not related to individual, team or site performance and the percentage is the same across the company (but not all staff are eligible).
However, the company are cagey about the exact terms of the scheme, and in particular have a policy not to mention the bonus in the contract (though she does get it in writing when the bonus is awarded). The company has a history of reneging on its promises and so she has tried to get this changed, but they will not budge. The same situation arose when joining the company car scheme - it's not in her contract and although the car is made available for personal use, it is specifically stated in the details of the scheme that entitlement may be withdrawn if the company decides that her role no longer requires it.
She is now wondering where she would stand should she go on maternity leave (she has been there several years). By my understanding the rules are that an employee should be considered to be working as normal whilst on maternity leave, except when in remuneration. I have read that a car provided for personal use is considered a benefit (she pays tax on it as such) even if not in the contract and therefore she should keep it, but I'm not sure how this clashes with the 'only while required' nature of the scheme. Can the company say the car isn't required while she is on maternity (because she doesn't need the car to carry out her duties)?
The bonus I am even more unsure of - I have read that if the bonus is a contractual obligation OR provided to all staff, and is not linked directly to individual performance, she should still get it. But I have read conflicting things about this, and it is also not clear if it matters that it is not written into her contract, or that it is not provided to all staff in the department (just the ones on the same level).
So, what do you law types think?
My girlfriend's employer operates an annual bonus scheme, of which she and the others in the same role are members. This is apparently a purely profit-based scheme, not related to individual, team or site performance and the percentage is the same across the company (but not all staff are eligible).
However, the company are cagey about the exact terms of the scheme, and in particular have a policy not to mention the bonus in the contract (though she does get it in writing when the bonus is awarded). The company has a history of reneging on its promises and so she has tried to get this changed, but they will not budge. The same situation arose when joining the company car scheme - it's not in her contract and although the car is made available for personal use, it is specifically stated in the details of the scheme that entitlement may be withdrawn if the company decides that her role no longer requires it.
She is now wondering where she would stand should she go on maternity leave (she has been there several years). By my understanding the rules are that an employee should be considered to be working as normal whilst on maternity leave, except when in remuneration. I have read that a car provided for personal use is considered a benefit (she pays tax on it as such) even if not in the contract and therefore she should keep it, but I'm not sure how this clashes with the 'only while required' nature of the scheme. Can the company say the car isn't required while she is on maternity (because she doesn't need the car to carry out her duties)?
The bonus I am even more unsure of - I have read that if the bonus is a contractual obligation OR provided to all staff, and is not linked directly to individual performance, she should still get it. But I have read conflicting things about this, and it is also not clear if it matters that it is not written into her contract, or that it is not provided to all staff in the department (just the ones on the same level).
So, what do you law types think?
bogwoppit said:
Eric Mc said:
Are you saying the company would block her from using "her" company car if she was on maternity leave?
If the car is leased by the company technically they could take it back (e.g. to give to someone covering her job).If she has no access to the car for any period if time - in other words, she can not keep it at home and is not allowed drive it, then for that period of time the Benefit in Kind charge will not apply. Her employer should notify HMRC that she is no longer using the car by completing and suubmitting a Form P46 (Car).
That isn't really what she is bothered about, to be honest. Can the company legally take it away, given that whilst on maternity she is supposed to be considered "working" all purposes except remuneration? For example, they must continue pension contributions, healthcare etc. I want to know if the same rule applies to her company car and bonus benefits.
It depends on what it says about company car policy in her employment contract.
If they think the car is better off in the hands of an employee who IS at work, then I can see the logic of them withdrawing its use from her. It is THEIR car after all.
However, if the employment contract specifically states that the car is hers for all periods or even states categorically that she can retain the use of the car even when absent from work, then they would be breaching the contract if they stopped her using it. On the other hand, if the contract is silent on the subject of company cars or does not go into detail regarding company policy when the employee is absent, then they have a better case for grabbing it back.
In fact, from what you are saying in the initial post, the contract states that they can withdraw the car when they see fit. On that basis, I think the car will have to go back.
If they think the car is better off in the hands of an employee who IS at work, then I can see the logic of them withdrawing its use from her. It is THEIR car after all.
However, if the employment contract specifically states that the car is hers for all periods or even states categorically that she can retain the use of the car even when absent from work, then they would be breaching the contract if they stopped her using it. On the other hand, if the contract is silent on the subject of company cars or does not go into detail regarding company policy when the employee is absent, then they have a better case for grabbing it back.
In fact, from what you are saying in the initial post, the contract states that they can withdraw the car when they see fit. On that basis, I think the car will have to go back.
Edited by Eric Mc on Thursday 18th February 16:55
OK thanks. From a contractual point of view, it seems to make sense that way. What confuses things is that it is not about the person needing the car, it is about the role. As far as I am aware, legislation for maternity leave is quite strict in that an employer basically cannot consider the employee to be away from work for any reason. Changes to terms and conditions, promotion opportunities, possible redundancies etc all have to be handled as if she is still attending work, for example.
It seems pretty clear that if the company lost a client that she needed to drive to visit, for example, they could take it back no questions. But if her being on maternity leave still counts as "doing her job as normal" things are different, no?
The bonus is a separate issue - I think this hinges on whether the bonus is a reward for performing the job well, or a bonus given to all staff for company performance. Hers is the latter, so I think they cannot miss her out for maternity, but I am wondering if they can temporarily remove her from the scheme whenever they want and it "just so happens" they do this in the year(s) she takes maternity leave.
It seems pretty clear that if the company lost a client that she needed to drive to visit, for example, they could take it back no questions. But if her being on maternity leave still counts as "doing her job as normal" things are different, no?
The bonus is a separate issue - I think this hinges on whether the bonus is a reward for performing the job well, or a bonus given to all staff for company performance. Hers is the latter, so I think they cannot miss her out for maternity, but I am wondering if they can temporarily remove her from the scheme whenever they want and it "just so happens" they do this in the year(s) she takes maternity leave.
BeardedYam said:
OK thanks. From a contractual point of view, it seems to make sense that way. What confuses things is that it is not about the person needing the car, it is about the role. As far as I am aware, legislation for maternity leave is quite strict in that an employer basically cannot consider the employee to be away from work for any reason. Changes to terms and conditions, promotion opportunities, possible redundancies etc all have to be handled as if she is still attending work, for example.
It seems pretty clear that if the company lost a client that she needed to drive to visit, for example, they could take it back no questions. But if her being on maternity leave still counts as "doing her job as normal" things are different, no?
The bonus is a separate issue - I think this hinges on whether the bonus is a reward for performing the job well, or a bonus given to all staff for company performance. Hers is the latter, so I think they cannot miss her out for maternity, but I am wondering if they can temporarily remove her from the scheme whenever they want and it "just so happens" they do this in the year(s) she takes maternity leave.
She should insist on keeping the car. She should also insist on the bonus that she will so richly deserve. I'm sure that you are also aware that she is also accumulating holiday entitlement while she is being paid to stay at home. So why not sting her employer for that too.It seems pretty clear that if the company lost a client that she needed to drive to visit, for example, they could take it back no questions. But if her being on maternity leave still counts as "doing her job as normal" things are different, no?
The bonus is a separate issue - I think this hinges on whether the bonus is a reward for performing the job well, or a bonus given to all staff for company performance. Hers is the latter, so I think they cannot miss her out for maternity, but I am wondering if they can temporarily remove her from the scheme whenever they want and it "just so happens" they do this in the year(s) she takes maternity leave.
While you are at it, I wonder if she could claim extra sick pay if she gets a cold during her maternity leave? She should also keep a careful record of any days when she has a hangover. After all, I'm sure that she would have claimed these if she had not been on maternity leave.
One last thing, as her employer is entirely responsible for the costs of your decision to have a child, shouldn't you claim for the cost of the calories that you expended during her impregnation? A Big Mac meal costs almost £4.00. Claim that too.
Don
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don4l said:
BeardedYam said:
OK thanks. From a contractual point of view, it seems to make sense that way. What confuses things is that it is not about the person needing the car, it is about the role. As far as I am aware, legislation for maternity leave is quite strict in that an employer basically cannot consider the employee to be away from work for any reason. Changes to terms and conditions, promotion opportunities, possible redundancies etc all have to be handled as if she is still attending work, for example.
It seems pretty clear that if the company lost a client that she needed to drive to visit, for example, they could take it back no questions. But if her being on maternity leave still counts as "doing her job as normal" things are different, no?
The bonus is a separate issue - I think this hinges on whether the bonus is a reward for performing the job well, or a bonus given to all staff for company performance. Hers is the latter, so I think they cannot miss her out for maternity, but I am wondering if they can temporarily remove her from the scheme whenever they want and it "just so happens" they do this in the year(s) she takes maternity leave.
She should insist on keeping the car. She should also insist on the bonus that she will so richly deserve. I'm sure that you are also aware that she is also accumulating holiday entitlement while she is being paid to stay at home. So why not sting her employer for that too.It seems pretty clear that if the company lost a client that she needed to drive to visit, for example, they could take it back no questions. But if her being on maternity leave still counts as "doing her job as normal" things are different, no?
The bonus is a separate issue - I think this hinges on whether the bonus is a reward for performing the job well, or a bonus given to all staff for company performance. Hers is the latter, so I think they cannot miss her out for maternity, but I am wondering if they can temporarily remove her from the scheme whenever they want and it "just so happens" they do this in the year(s) she takes maternity leave.
While you are at it, I wonder if she could claim extra sick pay if she gets a cold during her maternity leave? She should also keep a careful record of any days when she has a hangover. After all, I'm sure that she would have claimed these if she had not been on maternity leave.
One last thing, as her employer is entirely responsible for the costs of your decision to have a child, shouldn't you claim for the cost of the calories that you expended during her impregnation? A Big Mac meal costs almost £4.00. Claim that too.
Don
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singlecoil said:
don4l said:
BeardedYam said:
OK thanks. From a contractual point of view, it seems to make sense that way. What confuses things is that it is not about the person needing the car, it is about the role. As far as I am aware, legislation for maternity leave is quite strict in that an employer basically cannot consider the employee to be away from work for any reason. Changes to terms and conditions, promotion opportunities, possible redundancies etc all have to be handled as if she is still attending work, for example.
It seems pretty clear that if the company lost a client that she needed to drive to visit, for example, they could take it back no questions. But if her being on maternity leave still counts as "doing her job as normal" things are different, no?
The bonus is a separate issue - I think this hinges on whether the bonus is a reward for performing the job well, or a bonus given to all staff for company performance. Hers is the latter, so I think they cannot miss her out for maternity, but I am wondering if they can temporarily remove her from the scheme whenever they want and it "just so happens" they do this in the year(s) she takes maternity leave.
She should insist on keeping the car. She should also insist on the bonus that she will so richly deserve. I'm sure that you are also aware that she is also accumulating holiday entitlement while she is being paid to stay at home. So why not sting her employer for that too.It seems pretty clear that if the company lost a client that she needed to drive to visit, for example, they could take it back no questions. But if her being on maternity leave still counts as "doing her job as normal" things are different, no?
The bonus is a separate issue - I think this hinges on whether the bonus is a reward for performing the job well, or a bonus given to all staff for company performance. Hers is the latter, so I think they cannot miss her out for maternity, but I am wondering if they can temporarily remove her from the scheme whenever they want and it "just so happens" they do this in the year(s) she takes maternity leave.
While you are at it, I wonder if she could claim extra sick pay if she gets a cold during her maternity leave? She should also keep a careful record of any days when she has a hangover. After all, I'm sure that she would have claimed these if she had not been on maternity leave.
One last thing, as her employer is entirely responsible for the costs of your decision to have a child, shouldn't you claim for the cost of the calories that you expended during her impregnation? A Big Mac meal costs almost £4.00. Claim that too.
Don
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You've put my mind at rest.
Don
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I can't pretend to agree with the law around maternity leave, personally I think it is crippling to small businesses and have some fruity views on what should be permitted in terms of "discrimination" but the law is the law. A company is required to act as if the employee is not causing them a massive headache even though they really are. Just like a company is responsible for health and safety at work, providing an occupational pension scheme and a long list of other responsibilities. The fact is, having children is something that fewer and fewer earning couples are choosing to do, and this can only be a terrible thing for the economy. But that's a topic for another day.
Just so we are clear, she is not "insisting" on anything, she simply wants to know what the rules are so we, as responsible people, can figure out whether we can afford to have children without having to tell her employer we are considering it. If she won't keep the car we need to buy one, and if she won't get a 25% bonus we have to budget for it. Thanks for your input though, Don. You've definitely tripped my guilt complex, and tomorrow I will be handing my employer a fat cheque for all the time I have spent taking a s
t at work (as I'm sure you do already). My wife on the other hand will probably stop putting in 20 hours extra unpaid work per week since she might not get rewarded for it. Sound reasonable?
Just so we are clear, she is not "insisting" on anything, she simply wants to know what the rules are so we, as responsible people, can figure out whether we can afford to have children without having to tell her employer we are considering it. If she won't keep the car we need to buy one, and if she won't get a 25% bonus we have to budget for it. Thanks for your input though, Don. You've definitely tripped my guilt complex, and tomorrow I will be handing my employer a fat cheque for all the time I have spent taking a s
t at work (as I'm sure you do already). My wife on the other hand will probably stop putting in 20 hours extra unpaid work per week since she might not get rewarded for it. Sound reasonable?Eric Mc said:
Maybe she should chat to ACAS.
In my opinion, if she insists on retaining the car, she will not be doing herself any favours with her employers. How much does she actually NEED the vehicle?
Thanks Eric, that sounds sensible. She would need a car of some description, I sometimes work away.In my opinion, if she insists on retaining the car, she will not be doing herself any favours with her employers. How much does she actually NEED the vehicle?
don4l said:
singlecoil said:
don4l said:
BeardedYam said:
OK thanks. From a contractual point of view, it seems to make sense that way. What confuses things is that it is not about the person needing the car, it is about the role. As far as I am aware, legislation for maternity leave is quite strict in that an employer basically cannot consider the employee to be away from work for any reason. Changes to terms and conditions, promotion opportunities, possible redundancies etc all have to be handled as if she is still attending work, for example.
It seems pretty clear that if the company lost a client that she needed to drive to visit, for example, they could take it back no questions. But if her being on maternity leave still counts as "doing her job as normal" things are different, no?
The bonus is a separate issue - I think this hinges on whether the bonus is a reward for performing the job well, or a bonus given to all staff for company performance. Hers is the latter, so I think they cannot miss her out for maternity, but I am wondering if they can temporarily remove her from the scheme whenever they want and it "just so happens" they do this in the year(s) she takes maternity leave.
She should insist on keeping the car. She should also insist on the bonus that she will so richly deserve. I'm sure that you are also aware that she is also accumulating holiday entitlement while she is being paid to stay at home. So why not sting her employer for that too.It seems pretty clear that if the company lost a client that she needed to drive to visit, for example, they could take it back no questions. But if her being on maternity leave still counts as "doing her job as normal" things are different, no?
The bonus is a separate issue - I think this hinges on whether the bonus is a reward for performing the job well, or a bonus given to all staff for company performance. Hers is the latter, so I think they cannot miss her out for maternity, but I am wondering if they can temporarily remove her from the scheme whenever they want and it "just so happens" they do this in the year(s) she takes maternity leave.
While you are at it, I wonder if she could claim extra sick pay if she gets a cold during her maternity leave? She should also keep a careful record of any days when she has a hangover. After all, I'm sure that she would have claimed these if she had not been on maternity leave.
One last thing, as her employer is entirely responsible for the costs of your decision to have a child, shouldn't you claim for the cost of the calories that you expended during her impregnation? A Big Mac meal costs almost £4.00. Claim that too.
Don
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You've put my mind at rest.
Don
--
Personally I think that any firm that are insane enough to employ women of child bearing age must be so out of touch with reality that it is difficult to be sympathetic. I had jobs in my gift 25 years ago, and never chose a woman of less than 40 odd years old.
My expectation is that they won't be bothered about the car - too much hassle to get it back etc, though if they can't recruit for cover without it they might try I suppose.
The bonus I would most definitely not put it past them to wriggle out of, even if she was only on leave for a couple of months of the year. It took her a long time to fight for the bonus when everyone else on her level already had it, and still they refuse to put it in her contract. To be honest if she ends up on maternity from feburary to october she won't be bothered about not getting a bonus so much, but if she loses 2 years' worth for being off july - march she'd be very upset.
They also have a tendency to risk tribunals with some of the other stuff they have done - some truly atrocious discrimination and sackings have gone on. Not sensible, but happens.
The bonus I would most definitely not put it past them to wriggle out of, even if she was only on leave for a couple of months of the year. It took her a long time to fight for the bonus when everyone else on her level already had it, and still they refuse to put it in her contract. To be honest if she ends up on maternity from feburary to october she won't be bothered about not getting a bonus so much, but if she loses 2 years' worth for being off july - march she'd be very upset.
They also have a tendency to risk tribunals with some of the other stuff they have done - some truly atrocious discrimination and sackings have gone on. Not sensible, but happens.
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