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Handling an employee’s return to work after maternity leave can feel like a bit of a minefield to most employers. Added to this is the risk of expensive pregnancy and maternity related discrimination claims as well as possible sex discrimination and constructive dismissal claims if they get things wrong.

Statutory Maternity Leave

Expectant mothers are entitled to take up to 12 months maternity leave to spend with their new born. This is broken down as 26 weeks Ordinary Maternity Leave (OML) and 26 weeks Additional Maternity Leave (AML). The first 2 weeks of maternity leave after baby is born, is compulsory maternity leave (CML) and an employer must not ask or allow the employee to undertake any work during this period.

An employer is to assume that their employee will return to work after 12 months unless they are told differently by the employee. An employee can request to return sooner and this can be agreed before they start maternity leave. If they decide they do want to return sooner than previously agreed, the employee should provide 8 weeks’ notice of their request. An employer can agree to this request with less, or no notice.

Extending Maternity Leave

Occasionally, some employees want to extend their leave to beyond the 12 months statutory maternity leave. This can be done by agreement from their employer or they can apply to take parental leave. In order to do this the employee must give 21 days' notice of her intention to take parental leave, the employee may take no more than four weeks in any given year; and the employer may postpone the parental leave by up to six months to avoid undue operational disruption.

More commonly, an employee on maternity leave may request to add any accrued, untaken holiday to the end of their maternity leave. Employee’s on maternity leave continue to accrue annual leave during their absence and are entitled to carry this over in to their next holiday year.

Returning To Work

OML

Employees who have taken no more than their 26 weeks OML have the right to return to the same job on the same terms. They are also entitled to any benefits that have been given during their absence such as pay increases and bonuses and employers need to ensure that the employee on maternity leave is not treated any less favourably than her colleagues.

AML

Employees who have taken AML ( leave of more than 26 weeks) are entitled to return to the same job, on the same terms unless there is a reason why it is not reasonably practicable such as a restructure or reorganisation. In these circumstances, the employee is entitled to return to a comparable position on terms no less favourable than she would have received had she not been on maternity leave.

Flexible Working Requests

It is not uncommon for returning employees to want to change their working hours in order to accommodate their childcare commitments.

It may be that following a conversation with the employee that only a small change is required and this can be done by mutually agreeing the change to the employee’s contract.

Alternatively, the returning employee may make a formal flexible working request. This request must be made in writing and the employer must deal with it in a timely and reasonable manner, informing the employee of the outcome within 3 months. The employee’s statutory right is to make the flexible working request and have it properly considered. It is not their right to have it granted and whether it is granted is determined by the employer and its ability to accommodate the request.

 

Breastfeeding

Employers should be aware of their duty to accommodate returning employees who are breastfeeding and require the facilities to express and store their milk whilst at work. This includes carrying out a risk assessment and removing any risks or hazards to the breastfeeding employee. In some cases the employee may even require time off to breastfeed their child. Whilst there is no legislation on this particular issue placing a breastfeeding employee at a detriment whilst at work could result in claims for sex discrimination.

 

If you or your HR team need assistance with anything covered in this article, then please do not hesitiate to get in touch. 

Sara Ellison
  • Chartered Legal Executive

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