Can my employer withhold pay after delaying my return to work?

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I was due to return to my job in the coming days following maternity leave. As I have been diagnosed as autistic, my employer stipulated that I need to be signed off by occupational health to return to work. My employer has moved this appointment five times, delaying my return. Human resources is suggesting that I may not be paid this month, as I am yet to be signed off as fit to return. I need to be paid as I have a mortgage and a family to support. Can my employer legally withhold my wages in this situation?

Amelia Little, employment associate at JMW Solicitors in London, says as your maternity leave has ended, then unless you are sick or otherwise lawfully absent, you are generally considered to be ready and able to resume your duties. The delay to your return appears to be entirely your employer’s fault and not due to your own health or availability. Therefore, it is very likely that any failure to pay your wages could amount to an unlawful deduction.

Your employer cannot use delayed meetings with occupational health to hold back your return to work or withhold your pay.

Even in circumstances where your contract expressly states that you must get OH clearance before returning to work, your employer would generally not be permitted to withhold your pay when the hold-up is due to their rearrangement of meetings and not down to you.

Further to your diagnosis of autism, you are likely to be considered disabled under the Equality Act 2010. If this is the case, your employer has a legal duty to make reasonable adjustments for you.

The repeated delay of your return to work could be considered discriminatory as it is causing you a disadvantage compared with colleagues who are not disabled.

Unless your employer is able to justify the delay as proportionate and necessary, then it is likely to amount to discrimination.

You may also want to consider whether your employer’s decision to prevent your return and withholding your pay offers grounds to resign for a constructive dismissal claim (though you need to have more than two years’ service). Given your concerns about paying your mortgage and supporting your family, this could be a risky move that should only be taken once you have received appropriate legal advice.

In terms of next steps, I would recommend first raising a grievance against your employer setting out a timeline of what has happened to date and requesting immediate confirmation that you will be paid from your expected return date.

I am due to inherit about £400,000 after my 92-year-old mother passed away. I’m comfortably off and do not need the inheritance and so I would like to split it equally between my two adult children. More pressingly, I have a long-term health condition and am unlikely to live beyond the next five years so I am wondering if there is a way I can pass on the money to avoid it being part of my estate? I am divorced and my children are the sole beneficiaries of my estate. 

Lilly Whale, an associate in the private client team at RWK Goodman, says when someone receives an inheritance they do not need, it is natural to want to pass the wealth on tax efficiently, especially if health concerns are a factor. There are options available depending on your mother’s estate and your personal circumstances.

If the estate has not been fully administered, you could use a deed of variation to redirect your £400,000 inheritance to your adult children. For inheritance tax (IHT) purposes, HMRC will treat this as if it came directly from your mother. This strategy avoids the inheritance ever becoming part of your estate and if drafted correctly it avoids triggering additional tax liabilities. 

To qualify, a deed of variation must be completed within two years of death and signed by all affected beneficiaries, including you. It must be in writing and include a statement confirming that it is intended to apply retrospectively for IHT and/or capital gains tax. Take care here, however, since it is not always appropriate to declare both: these statements serve different purposes and including both can risk unintended tax consequences.

If the funds have already been distributed to you, or more than two years have passed since your mother’s death, you could instead make outright gifts to your children. These are considered potentially exempt transfers for IHT. If you survive seven years after making the gift, it falls outside your estate. If you die within that period, the gift may still be taxed, though taper relief might reduce the bill after three years.

It is essential that you do not retain any benefit from the gifted sums, as doing so could cause the assets to remain part of your estate. Additionally, your own long-term health issues could invoke the deprivation of assets rules: if you are receiving or anticipate needing means-tested benefits, any gift or variation could be challenged by the DWP or local authority, who may view it as an attempt to reduce your assets to qualify for support.

The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.

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