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is entitled to the benefit of all contractual terms and conditions during all maternity leave, except remuneration. Where salary has already been contractually sacrificed in exchange for an employer pension contribution, it may be argued that the resulting employer contribution constitutes a contractual benefit rather than remuneration. On that basis, you could argue that employer pension contributions must continue throughout the entire 52-week maternity leave period. However, this goes beyond the position under the Equality Act, which indicates that employer pension contributions only need to continue during the period of maternity leave that the employee’s paid. Unfortunately, we currently don’t have any clarity on what the correct position is. Therefore, a cautious approach would be to maintain employer pension contributions during the whole period of maternity leave. Actions to take now Employers failing to comply with their legal obligation to maintain employer pension contributions during maternity leave are exposing themselves to the risk of claims from impacted employees, and potential reputational damage from any negative press. To mitigate these risks employers should: l audit pension salary sacrifice arrangements to check they comply with guidance from HM Revenue and Customs l review the payroll process when employees are on maternity leave, to establish how pension contributions are calculated and ensure this is compliant l review communications around salary sacrifice schemes to ensure they clearly explain how pension contributions will operate during maternity leave.
Charlie Barnes
Head of Employment Legal Services, RSM UK
Anna Burdett
Employment Legal Manager , RSM UK
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