What to do if an employer ceases, becomes insolvent, takes over an existing business or makes employees redundant whilst paying Statutory Maternity Pay.
You take over a business
If you take over a business or part of a business and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE Regulations) apply, then continuity of employment isn’t broken.
These regulations apply when you take over a business, part of a business or a service provision and take over the contracts of employment of the employees being transferred with the business. The ‘employee liability information’ which the transferor or employer must provide will give the identities of those employees being transferred with the business.
If the TUPE regulations don’t apply, continuity of employment may still be not broken when:
- a teacher in a school maintained by a local education authority moves to another school maintained by the same authority, including maintained schools where the governors of the school, rather than the local education authority, are the teacher’s employer
- 1 corporate body takes over from another as the employer by or under an Act of Parliament
- the employer dies and their personal representative or trustees keep the employee on
- there is a change in the partners, personal representatives or trustees
- the employee moves from 1 employer to another and at the time of the move the 2 employers are associated
If continuity of employment isn’t broken the employee can get SMP.
If continuity of employment is broken and you take on the business:
- after the start of the Qualifying Week (QW), the previous employer must pay SMP to the employee if she was employed by the previous employer in the QW and your employee is still entitled to 52 weeks maternity leave
- before the start of the QW, the employee can’t get SMP but is still entitled to maternity leave
Where SMP isn’t due, you must issue form SMP1 within 7 days of the decision being made, which must be within 28 days from the date the employee gave notice of absence, or the date she gave birth if this was earlier.
You cease to trade
If you cease to trade you remain liable to pay any outstanding SMP payments until either:
- your employee has received their full entitlement
- their entitlement ends for some other reason
You become insolvent
If you become insolvent:
- after the start of the QW and before the start of your employee’s pay period, HM Revenue and Customs (HMRC) will pay your employee’s SMP
- during the SMP pay period, HMRC will pay your employee’s SMP from the week in which you became insolvent
You should advise your employee to contact the Statutory Payment Disputes Team on Telephone: 03000 560630.
You, the administrator, liquidator or other similar must tell HMRC. Your employees are then paid as soon as possible.
Your employee is made redundant
If your employee has qualified for SMP from you, you are still liable to continue to pay SMP to her where she leaves your employment for whatever reason, including redundancy. However, if after the baby is born your employee or ex-employee starts work for another employer who did not employ her in the QW, SMP should stop.
There are special rules about making a woman redundant during pregnancy or maternity leave. For more information contact Acas.