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

Statutory payments are those paid by your employer, including:

• Statutory Maternity Pay (SMP)
• Statutory Paternity Pay (SPP)
• Statutory Adoption Pay (SAP)
• Statutory Sick Pay (SSP)
• Shared Parental Pay (ShPP)

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, SPP1 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) but you can still ask your employer to explain their decision in writing (email/letter).

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 a statutory payment is not payable for any other time period. This may help you to understand how your statutory payment has been calculated, and how much tax has been withheld.

Contact the HMRC 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 HMRC 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 is worth writing to them first to tell them that you intend to contact HMRC 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 HMRC. HMRC’s Statutory Payment Dispute Team contact details are available on their website.

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 HMRC.

You should notify HMRC’s Statutory Payment Dispute Team within six months of the issue arising if your employer has not paid you a statutory payment which you are entitled to. For example, if your employer has not paid you any SMP at all, you should apply to HMRC within six months from when SMP has not been paid (this is usually from the start of maternity leave). In cases where some of your statutory payment has been paid to you but the amount is less than it should be, you must contact HMRC within 6 months of the final statutory payment. For example, if your employer has not applied a pay rise in accordance with the SMP regulations you must notify HMRC within 6 months of your final SMP payment – which would be at the end of the 39 week SMP payment period.

If you can, include any decisions, letters or emails 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.

HMRC 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 HMRC

Once both you and your employer have commented on their opinion, HMRC will issue a formal decision. This is legally binding on your employer. If your employer has been told to pay you 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 HMRC 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 HMRC 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 HMRC.

If your employer is insolvent

If your employer cannot pay because they are insolvent (meaning they do not have enough money), HMRC will take over payments, and you should contact the HMRC Statutory Payment Dispute Team.

Unfortunately, employers do sometimes become insolvent 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 HMRC. 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). Lump sum payments of SMP can affect your entitlement to benefits such as Tax Credits and Universal Credit. 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.

HMRC is responsible for paying any statutory payments which start 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 HMRC 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.

For more information, see our article on your rights if your employer is made insolvent.

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

If you have further questions and would like to contact our advice team please use our advice contact form below or call us.

We would love your feedback

• 

  Would your employer benefit from support from Working Families?

  Would your employer benefit from some support & guidance from Working Families? If you would like to make your employer aware of how Working Families can help them, we have an introduction letter template available that you can give to the relevant person in your organisation.