Member Since: 7th May 2009
Legislation Manager MHR
My discussion replies
14th Nov 2011
The problem with "self-employment" contracts like the one quoted is that the nature of the work actually done and the conditions under which it's done can be taken into account by tribunals (or HMRC for that matter) when deciding whether an employment relationship actually exists, regardless of what the contract says.
If the practicalities of the arrangement suggest employment, the person will be deemed an employee. It's a variation on the old saying that "if it looks like a duck, swims like a duck and quacks like a duck, then it's a duck, whatever the paperwork says."
I'm not saying these arrangements are never appropriate, just that to avoid disputes you need to make sure that the wording of the contract is reflected in the way the person is treated "on the ground".
4th May 2011
Nineteen weeks. It's based on the portion of the mother's maternity pay period which remains. The MPP started when she began her maternity leave and is continuous. The fact that she's returned to work earlier doesn't make any difference.
2nd Feb 2011
At the risk of clouding the issue for you, I'm not sure these people are actually entitled to 28 days off.
The BusinessLink website gives an example which looks very similar to yours:
"It is sometimes easier to calculate holiday entitlement as shifts. So if a member of staff works four 12-hour shifts followed by four days off, the average working week is 3.5 12-hour shifts. So 5.6 weeks' holiday is 5.6 x 3.5 = 19.6 12-hour shifts."
The relevant page can be accessed here.
7th Jan 2010
Statutory redundancy pay is due at the point the employment ends; February in your case. The fact that you have an ongoing obligation to pay SMP beyond that date isn't relevant.
Redundancy pay is based on her normal pay, not SMP. Also, remember that there is an entitlement to notice pay - she still gets this even though she's on maternity leave (but you can offset SMP against it).
20th Nov 2009
You should process the resignation in the normal way - her employment ends on the last day of the notice period (even though she won't work her notice due to being absent through sickness).
You need to pay her sick pay up to and including the last day of the notice period. If necessary, make a payment in lieu of any outstanding holiday in the normal way: calculate her holiday entitlement up to the last day of the notice period.
17th Aug 2009
The notice period ought to be unaffected. As the employee resigned on the 17th of August with a month's notice and the paternity leave ends on the 15th of September, the leaving date will be just after the end of the paternity leave period.
Therefore the leaving date will be calculated just as it would be if the paternity leave wasn't present. The final payment will also be calculated in the usual way for a period the appropriate length containing 2 weeks' paternity leave. The circumstances mean that the employee will only be present for about half their notice period, but there's really nothing you can do about this.
30th Jul 2009
Yes, you can.
The form must contain all the relevant information from the official SC3. This is listed on page 9 of the 2009/10 version of HMRC booklet E19, which I've copied below:
It must include your employee's name and National Insurance number and a declaration that they:
• intend to support the mother or care for the child, and
• have or expect to have responsibility for the upbringing of the child, and
• are either:
- the baby’s biological father, or
- married or in a civil partnership with the baby’s mother, or
- living with the mother in an enduring family relationship, but are not an immediate relative.
It must also include:
• the expected date of birth, and in cases where the baby has been born, the date of birth
• the date from which the employee wants to be paid SPP
• whether the employee wants to be paid one week or two.
14th May 2009
You need to tread carefully here, to balance a couple of things.
On one hand you have a duty to keep the employee informed about job-related matters which might affect her on her return. On the other hand, however, you cannot insist she attends for a KIT day: these are entirely voluntary. You also can’t subject her to undue pressure to attend (as this would be considered harassment), nor can you subject her to any detriment for failing to work a KIT day.
One approach might be to write to her outlining the workplace changes she needs to be aware of, and include an invitation to a meeting if she needs any further information. At least then she won’t be completely unaware of the changes when she returns and if you’re lucky she’ll take the bait and agree to a KIT day. You will also have fulfilled your obligation to keep her informed.
Ultimately, though, if she refuses to attend there really isn’t anything you can do about it.
Incidentally, you can take advantage of the KIT days when the employee returns to work, as she will still have SMP entitlement remaining. Assuming none of the KIT days have been taken, then for the first 10 days after her return you can pay her normal salary but also pay SMP and offset this against the pay. The employee doesn’t gain as she ends up with her normal pay overall but since some of it is deemed to be SMP you can reclaim the usual amount from HMRC.