Home Advice for Parents & CarersMaternity Pay and Benefits What to do if my employer does not give me statutory pay?

What to do if my employer does not give me statutory pay?

Last updated: 25 Mar 2021

Statutory payments are those paid by your employer, including:

There is more information on our website about problems with other payments such as Maternity Allowance.

If your employer refuses a statutory payment

If you are refused a statutory payment, or you get less than you think you are entitled to, you should seek advice and check the rules. You may need to check eligibility requirements and do a calculation of earnings in a particular period to check the amount that you should be entitled to versus the amount you were paid.

For statutory family pay, you can use this quick and easy government calculator.

Your employer should write to you and explain their reasons

If your employer is not going to give you a statutory payment, they should write to you explaining their decision. The forms used to do this are SSP1 for Statutory Sick Pay, SMP1 for Statutory Maternity Pay, OSPP1 for Ordinary Statutory Paternity Pay, and SAP1 for Statutory Adoption Pay. There are no official forms if your employer refuses to pay you Statutory Shared Parental Pay (ShPP).

Even if you no longer work for your employer, you have the right to a decision and to ask for a written statement. Your employer should also return any evidence that you have given them as part of your claim, for example, your maternity certificate (MATB1) if you have claimed SMP.

If your employer gives you the payment, but you are unsure if you are receiving the correct amount, you can ask your employer for a written statement setting out the amount of statutory payment they think you are entitled to, the rate they think you should get, and the reason that SSP or SMP is not payable for any other time period. This may help you to understand or how your statutory payment has been calculated, and how much tax has been withheld.

Contact the HRMC Statutory Payment Dispute Team

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 HRMC to make a decision on your entitlement. To do so, you should contact the Statutory Payment Dispute Team.

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 HRMC 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 HRMC.

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. You can include this in your application to HRMC.

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 SMP, you should apply to HRMC 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, your MATB1 form and payslips from your reference period. Don’t delay your application if it means you may miss the deadline.

HRMC 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.

Get a decision from HRMC

Once both you and your employer have commented on their opinion, HRMC 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.

If your employer appeals against the decision, the time limit for paying will depend on what has happened with their appeal. If you want to appeal against HRMC 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 HRMC handle your dispute. However, 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 HRMC.

If your employer is insolvent

If your employer cannot pay because they are insolvent HRMC will take over payments, and you should contact the HRMC Statutory Payment Dispute Team.

Unfortunately, employers do sometimes become insolvent (not have enough money), and this can happen when you have qualified for statutory pay, or after you have already started to receive payments.

If this happens, you will still get your statutory payment through HRMC. 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.

HRMC 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 HRMC at a later date if the employer still does not pay. The insolvency practitioner should write to you do explain what to do.

You can contact the Statutory Payment Dispute Team to explain what has happened, you do not need a specific form.

Occupational Stress Claims

An Occupational Stress Claim is a type of personal injury claim for psychiatric injury arising from stress.

However, workplace stress resulting from coronavirus has not yet been tested in the courts and it is difficult to know what approach will be taken, and any claim will be very fact-specific.

For an Occupational Stress Claim to succeed, an employee will need to prove that:

  • The employer owed a duty of care to the employee not to act carelessly;
  • The employee breached that duty; and
  • That breach caused the employee to suffer an injury.

Duty of Care

An employee is under a duty to take steps to protect an employee from stress at work where it is reasonably foreseeable that the employee is at risk of suffering that kind of harm.

What is foreseeable depends on what the employer knows (or could reasonably be expected to know) about the individual employee and their circumstances. With home working, the question of what the employer knew or ought to have known becomes more complex.

The considerations can include:

  1. The nature and extent of the work done;
  2. Whether the workload was much more than normal for that particular job;
  3. Whether the work is particularly intellectually or emotionally demanding for the employee;
  4. Whether the demands of this employee were unreasonable when compared with the demands of others in the same or comparable jobs;
  5. Whether there are signs that others doing this job are suffering harmful levels of stress;
  6. Signs from the employee of impending harm to health;
  7. Whether the employee has a particular problem or vulnerability;
  8. Whether the employee has previously suffered from illness attributable to stress at work; and
  9. Whether there is reason to think that any recent and uncharacteristic absences from work might be attributable to stress at work, for example, because of complaints or warnings from the employee or others.
    (Hatton v Sutherland [2002]).

The guidance is that the stress must be plain enough for any reasonable employer to realise something should be done about it, but proving foreseeability can often be a difficult hurdle to overcome.

It may even be arguable that in some public sectors (such as the NHS) reasonable foreseeability can be presumed where workers are at greater risk of contracting the virus, but in other sectors, the awareness of the risk of harm may be less clear cut. However, as already mentioned, it is not clear what approach the courts will take to determine issues such as whether psychiatric harm was reasonably foreseeable and whether reasonable steps were taken in light of all the circumstances faced by both the employer and employee. The courts may even be sympathetic to some employers given the difficulties faced, for example, with limited resources or jobs that involve regular direct contact with people suffering from the virus.

Breach of Duty

Once the standard is decided, an employee must also establish a breach of duty, showing that the employer has broken the standard by failing to take reasonable steps to protect the employee from suffering the injury.

What steps were reasonable will depend on the circumstances of each case, and will often involve a balance between the level of risk and severity of likely harm to the employee against the cost and practicability of the proposed step. It will also depend on the sector of employment and considerations of the interests of other employees. It is important not to assume that, just because someone has been injured, there is necessarily a breach.

It is always useful to keep evidence to show what indications of harm were obvious to the employer, what discussions (if any) took place with you and your employer, what options or protective measures were considered but not implemented, and any medical and employment records, in case it becomes necessary to take additional steps at a later stage.

Causation

An employee must also show causation between the employer’s breach of duty and the injury. In other words, that employment-related stress produced a recognised psychological illness or disease.

The illness or disease must be recognised as a medical condition by the World Health Organisation. “Stress” is not a recognised disease, although there are many illnesses that are, for example, psychosis and depression.

Causation may become a particularly difficult issue where an employee has been exposed to COVID-19 at work.

Bringing a Claim

If you are thinking of bringing a claim you should get expert advice to see if you can take legal action and claim compensation. The time limit for bringing a claim is 3 years from the date of the injury suffered or (if later) the date you knew (or could be reasonably expected to know) that the injury might give rise to a legal claim.

The information on the law contained on this site is provided free of charge and does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are advised to obtain specific legal advice about your case or matter and not to rely solely on this information. Law and guidance is changing regularly in this area.