What can I do when my employer refuses to pay my Statutory Maternity Pay and other Statutory Payments?
Statutory payments are payments from your employer including:
- Statutory Maternity Pay (SMP).
- Statutory Paternity Pay (SPP).
- Statutory Adoption Pay (SAP).
- Statutory Sick Pay (SSP).
There is more information on our website about problems with other payments such as Maternity Allowance.
If you are refused a statutory payment, your employer refuses to pay, or you get less than you think you are entitled to, you should seek advice and check the rules. As well as checking that you are entitled, you may need to do a calculation of earnings in a particular period to check the amount that you should get.
Your employer usually has to give you a written decision about your statutory payment if they are not going to pay you.
If your employer cannot pay because they are insolvent the Revenue (Her Majesty’s Revenue and Customs or HMRC) will take over payments.
My employer is refusing pay me a Statutory Payment, or is refusing to give me a decision about a Statutory Payment
If your employer is not going to pay you a statutory payment you have claimed, they should write to you explaining their decision. The forms used to do this are usually SSP1 for Statutory Sick Pay, SMP1 for Statutory Maternity Pay, OSPP1 for Ordinary Statutory Paternity Pay (the two weeks shortly after the birth or adoption of a child), and SAP1 for Statutory Adoption Pay. However, there are no official forms if your employer refuses to pay you Statutory Shared Parental Pay. The employer doesn’t have to use any of the forms and may give you the information on their own form.
Your employer should also return any evidence to you which you have given them as part of your claim, for example, your maternity certificate (MATB1) if you have claimed Statutory Maternity Pay.
For SSP and SMP, you can also ask for a written statement setting out the days or weeks your employer thinks you are entitled; the daily or weekly rate they think you should get, and the reason that SSP or SMP is not payable for other days or weeks. You can ask for this even if your employer is paying you SSP or SMP, but you want to understand or check how it has been worked out.
Even if you no longer work for your employer, you have the right to a decision on SMP, SPP and SAP, and to ask for a written statement about SMP.
If you don’t agree with your employer’s decision on a statutory payment, or your employer fails to inform you of a decision, you can ask the Revenue (Her Majesty’s Revenue and Customs or HMRC) to make a decision on your entitlement.
If your employer hasn’t paid you and hasn’t given you a decision, it may be worth writing to them first to tell them that you intend to involve the Revenue if they do not inform you of their decision. This could prompt your employer into dealing with your claim without your having to take it any further. It is normally advisable to contact your employer to try to resolve statutory payment problems before involving the Revenue.
If you have talked to your employer and they still refuse to pay you a statutory payment you think you are entitled to, you should ask them to give you the correct statutory payment refusal form.
Do call NI Helpline on 0300 200 3500 who should be able to either answer queries or arrange a call back from the Statutory Payments Disputes Team (they say within 2 working days).
You may be entitled to Maternity Allowance (if you are pregnant) or Employment and Support Allowance (if you are not well enough to work) in which case you should take to your local Jobcentre Plus office. If the Jobcentre believes that you may be entitled to a statutory payment they will refer your case to the Revenue.
You may be referred to the Revenue by the Jobcentre, or you may contact the HMRC directly to ask for a form on which to challenge your employer’s decision. You should send the completed form to: Statutory Payments Disputes Team, Benton Park View, Newcastle upon Tyne, NE98 1ZZ, Tel: 0300 056 0630
NOTE: the above phone number is currently extremely busy. As a temporary measure HMRC are also accepting queries through the National Insurance Helpline on 0300 200 3500 who should be able to either answer queries or arrange a call back from the Statutory Payments Disputes Team.
You should make your application within six months of the earliest date for which your entitlement to statutory payment is in dispute. For example, if your employer has not paid you any Statutory Maternity Pay, you should apply to the Revenue within six months of the start of your maternity leave.
If you can, include any decisions you have received from your employer and any evidence you have used to show your entitlement, for example, the MATB1 form. But don’t delay your application if it means you may miss the deadline.
The Revenue may need further information to make a decision. They will also probably send a form to your employer to complete. They may try to negotiate between you and your employer by sending you both a written opinion about your entitlement. You will both have the opportunity to comment on the opinion.
If negotiation does not work, or the Revenue decides not to try negotiation, the Revenue will issue a formal decision. This is legally binding on your employer. If your employer has been told to pay then they should do so, at the latest on the first pay date after the time limit for appealing has expired. However, if your employer appeals against the decision, then the time limit for paying will depend on what has happened with their appeal. If you want to appeal against the Revenue decision, you should get advice.
If your employer fails to pay you a statutory payment, or doesn’t pay you enough, but admits you are entitled to it, you can also enforce your rights at Employment Tribunal. You should seek further advice before doing this. Most of the time it is easier to let the revenue deal with it, but if you have incurred losses because of your employer’s failure to pay, for example you had to pay overdraft fees because you went overdrawn, then you might be able to get this money back through a tribunal, but not through making a complaint to the revenue. Note however that a tribunal cannot determine issues around entitlement to statutory payments.
My Employer can’t pay me a Statutory Payment because they are insolvent
Unfortunately, employers do sometimes become insolvent (not have enough money), and this can happen when you have qualified for Statutory Maternity, Paternity, Adoption or Sick Pay, or even when you have already started to receive payments from your employer.
If this happens to you, you will still get your statutory payment once you have qualified for it. If your employer is still operating, you should continue to get your payment from them, or they may pay you the rest of your statutory payment in a lump sum (regardless of whether you are still an employee). If your employer goes into liquidation (is closed down), then the liquidator should get in touch with you to explain how you apply for your statutory payments from the government.
The Revenue is responsible for paying any statutory payments which are due from the week of insolvency (or from the day of insolvency for Statutory Sick Pay), but not any payments from before your employer became insolvent. Statutory payments which were due before your employer became insolvent, but which haven’t been paid, are a debt owed by your employer. Responsibility for these may pass to the Revenue at a later date if the employer still does not pay.
If your employer is insolvent, and you have not received all your Statutory Maternity, Paternity, Adoption, or Sick Pay, the Revenue may be responsible for paying you the rest. The insolvency practitioner should write to you do explain what to do.
You can write to the Statutory Payments Dispute team to explain what has happened, you do not need a specific form. The contact details are: Benton Park View, Newcastle upon Tyne, NE98 1ZZ Tel: 0300 056 0630 (but not that this number is extremely busy)
You should include the following information:
- Your name.
- Your address with post code, and your telephone number.
- The name of your employer and their address and postcode.
- The date your employer became insolvent/went into liquidation.
- Which statutory payment you are owed (for example, SMP).
- Copies of pay slips showing any statutory payments you have received.
- The period covered by the last statutory payment you had from your employer.
- The date your entitlement to statutory payment ends (for example, 39 weeks after you started your maternity leave, or 2 weeks after you started your paternity leave).
- Confirmation of your employer’s insolvency and the date this happened. You can use a letter from the insolvency practitioner as evidence of this.
In the meantime, you may be entitled to other benefits. You will find more information on the GOV.UK website.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.