The Employment Appeal Tribunal has distinguished between childcare vouchers which are given in addition to salary, and those which an employee can obtain through a “salary sacrifice”. Those given in addition to salary are a “non-pay benefit” and must be continued over maternity leave. Even though the mother may be at home with the new baby “there is nothing to prevent such vouchers being kept for later use”.

The same logic does not apply to vouchers gained through a salary sacrifice. These depend on the employee agreeing to divert her salary in order to obtain the vouchers. During the payment of Statutory Maternity Pay (SMP) there is no relevant salary to divert. As such the employer, who has never given this benefit as an addition to the employee’s wages, should not be forced to bear the cost of the vouchers during maternity leave.

Although such vouchers attract a favourable tax treatment, so as to “enable more women with young children to remain in or return to the workplace…the scheme is entirely voluntary on the employer’s part…If entering such a scheme had the consequence that once employees became pregnant the employer would face a cost beyond that it would already face by provision of statutory maternity pay, it would have the effect of discouraging employers from offering such a scheme.”

The EAT said the HMRC guidance on this point, which says that both forms of childcare vouchers should be continued over maternity leave, was wrong and not based on statute. Of course, the employment contract may provide for the continuance of the vouchers but there is no statutory need to do so.