A Guide To Returning To Work After Maternity Leave


The Law Of...Knowing Your Maternity Rights

Returning from maternity leave can be a headache for both employers and employees. Employees have to adapt to juggling the new responsibility of a baby alongside working life, and employers have to be prepared for a number of possible requests, such as extending leave and taking a supportive approach to a new mother returning to work.

It’s important for new parents and employers to understand some practical tips surrounding maternity leave. Deana Bates, Employment Law Solicitor, explains what you need to know.

Planning For The Return

Returning to work after such a long time off can be daunting, and so preparation is key.

Ideally, employers should discuss plans for return with you before maternity leave starts. This isn’t always possible, as complications or early birth can cause you to start maternity leave earlier than expected. It is imperative that both the employer and employee communicate with each other regarding returning to work as soon as possible.

At times employees opt to come into work during maternity leave. This is known as a Keeping In Touch day (KIT). KIT days are often used for training or to catch up on developments. Alternatively, you may opt to use the full maternity period, which, coupled with annual leave, can last more than a year.

What Are The Rules With Return Dates?

If you have not made the intended return date clear to your employer, then the employer should assume you are taking the maximum 52 week maternity leave entitlement. In some instances, the company may agree on a period of more than 52 weeks.

Whilst you should provide an intended date of return prior to commencing maternity leave, all manner of things can change during the time off and therefore you may wish to change the date.

If you do change your mind you must give the employer 8 weeks’ notice. If you provide less than 8 weeks’ notice the employer may not allow you to return earlier than your scheduled date. Work may have already been divided amongst other employees or temporary staff may have been hired to cover the full period of your maternity leave.

The employer cannot delay an employee’s return beyond the 52 weeks statutory maternity period.

What If I Require More Than 52 Weeks?

If you take the full 52 weeks off work but still do not wish to return, it is open to the employer to agree to an additional period of paid or unpaid leave.

In absence of any such agreement, you can request up to 4 weeks parental leave. The employer is not obliged to pay you for this leave and has the right to postpone the requested leave for up to 6 months if they believe that the leave period could cause disruption to the business.

Flexible Working

As your lifestyle will undoubtedly change after having a baby you may wish to change the hours or days you work upon your return. Therefore, it is important to be aware that you have the option to request flexible working.

For example, if you work Monday to Friday, nine until five, but realise during maternity leave that you will be unable to obtain child care on Fridays, then you can make a request for flexible working to your employer. If agreed, these requests can change the hours or days worked accordingly.

Whilst there is no automatic right for new mothers to return to work on reduced hours, employers should take extra care when dealing with a mother’s flexible working request. A decision to reject such request could amount to a potential claim for indirect sex discrimination.

How Do I Deal With The Changes During My Leave?

If the full maternity leave period is taken alongside any accrued annual leave, you could be away from work for over a year. It is very likely there will have been numerous changes during your absence. It is vital that your employer updates you to these changes either on or before your return.

For instance, if the systems used for your role are changed during maternity leave, then it is up to the employer to invite you to attend any relevant training courses. However, you will not be able to attend if the training occurs during your compulsory maternity leave period which is 2 weeks or 4 weeks in a factory environment.

You are not obliged to attend the training during your maternity leave, but have the option to do so by using a KIT day. Alternatively, full training should be provided by the employer upon your return.

More significant changes within the organisation, such as redundancy, will require a consultation process to be followed. Whilst an expectant or new mother is not exempt from redundancy, any redundancy situation that arises during an employee’s maternity leave should be treated sensitively, with sufficient consultation carried out by your employer.

Am I At Risk of Losing My Job To My Replacement?

A common misconception is whether you have the right to return to your own role after maternity leave. Some worry that if they are clearly outperformed by the temporary staff brought in to cover the maternity period that they will not have a job to return to.

If you take what is known as Ordinary Maternity Leave (OML) which is 26 weeks, or OML plus a period of parental leave of 4 weeks or less, then you have the right to the same job you were employed in before the absence. This means that the terms of employment must be the same, or no less favourable than they would have been had you not been absent on maternity leave.

The only exception to this would be if there was a redundancy situation which prevented you from your original role.

If you take Additional Maternity Leave (AML) which is an additional 26 weeks, you would generally be entitled to return to the same job you were doing prior to maternity leave.

Should you take 52 weeks maternity leave and then a period of parental leave, combining the total leave to above 52 weeks, then the employer may have more flexibility as to which role you return to.

Do I Have to Take My Accrued Leave On Top Of My Maternity?

You will continue to accrue holiday during maternity leave. In some cases, your employer can insist that you take this on the back of your maternity leave, delaying your return to work.

The answer will rely heavily on your employment contract and the company's policy relating to annual leave and maternity leave. If there is no mention of taking accrued holiday with maternity leave in either of the above, then it falls to employer's discretion.

If it is a term of either your contract or a company policy, that you must take the annual leave you have accrued during your maternity leave, in one block immediately following the end of your maternity leave then your employer can exercise this right.

If there is no mention of taking accrued annual leave on top of maternity leave in your contract, then it is up to you to reach an agreement with your employer on how and when the leave can be taken. 

What If I Get Sick And Can't Return On My Agreed Date?

Sickness is not something anyone is in control of and it can often result in unexpected periods of absence. If you fall ill close to your return from maternity leave, and subsequently cannot return to work, this will be classed as regular sick leave.

You will be entitled to your usual sick pay after your maternity leave ends, whether that is statutory or company sick pay. You must however still contact your employer to explain you are ill in the usual way.

Health & Safety For New Mothers

Health and safety laws require an employer to carry out a risk assessment with new Mothers upon their return to work. Failure to do so could result in a discrimination claim.

Carrying out risk assessments may highlight on-going medical conditions, such as post-natal depression. Such a condition could amount to a disability under equality laws and therefore mean that the employer has to consider reasonable adjustments where necessary.

Will I Lose Out On Promotion Opportunities?

Employees who have been absent on maternity leave should not be treated less favourably when it comes to career development or promotion opportunities.

Employers must take care when setting the criteria for any such opportunity and ensure that employees returning to work following a period of maternity leave are entitled to the same opportunities as other employees.

As an Employer, you should take care when setting promotion criteria in your business to make sure you do not place those returning from maternity at a detriment.

Can I Breast Feed At Work?

Many new mothers breast feed their babies during the working day or by expressing milk for them. It is an employer's responsibility not to assume that because the member of staff is back from maternity leave, they are no longer breastfeeding their child.

Health and safety laws require employers to provide suitable facilities for breastfeeding mothers to rest and take meal breaks. Break rooms with adjustable blinds and lockable doors are deemed as suitable areas for breast feeding or express milking. Places such as toilets are not considered suitable.

Whilst employers do not have to provide a specific time or place for you to breastfeed or express, if an employer refuses to accommodate you in breastfeeding or expressing milk for your child, they could risk facing a sex discrimination claim.

The law is somewhat vague in this area and we would strongly urge employers to seek legal advice from a member of our employment team before making any decisions which may prevent employees from breastfeeding and or expressing milk.

How Can Simpson Millar Help Me?

Practical guidance on what is a hugely complex and ever changing area of law is something new mothers should have access to. If you are an employee on maternity leave and worry what the situation will be upon your return, or an employer scratching your head as to how to handle an employee returning from maternity leave, we are here to help you.

Handling a maternity leave issue poorly could lead to a costly discrimination claim or unfair dismissal, don’t leave it to chance.

If you feel you have been treated unfairly as a result of your maternity leave at any stage of the process, or are an employer unsure of how to proceed with a maternity related issue, be sure to contact one of our specialist employment solicitors.

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