Unlike unfair dismissal cases, there is no ceiling limit on the amount of compensation that a tribunal can award for pregnancy/maternity discrimination. Compensation is usually made up of injury to feelings and an award to consider any loss suffered, e.g. loss of wages or pension.
With that in mind, it is understandable that employers may want to make sure that they have the correct guidance so as not to directly or indirectly discriminate against an employee on the grounds of pregnancy or maternity. Below, we answer four common questions and shed some light on what rights employees have with regards to returning from maternity leave.
1) Do employees have to provide notice to return from maternity leave?
One topic that is frequently misunderstood is whether employees have to provide notice to return from maternity leave. This depends on whether the employee intends to take the whole of their maternity leave entitlement. If so, no notice is necessary and their return to work date will be the end of the maternity leave period.
However, if an employee changes their mind or wishes to return earlier than the end of their maternity leave entitlement, they are required to provide the employer with at least 8 weeks’ notice or where this isn’t possible, as soon as is reasonably possible before the date they wish to return. An employer can accept a shorter notice period if they choose to.
If an employee decides not to return to their job, their contract of employment will detail the requisite notice period. However, if this is not detailed then a minimum of 1 weeks’ notice will be required where an employee has worked for longer than 1 month.
2) Will employees return to the same job after maternity leave?
Another thing for employees to consider is the right for an employee to return to their old job on their original terms and conditions. Employees have the right to return to exactly the same job if:
- They return after a period of ordinary maternity leave (the first 26 weeks of maternity leave).
- They have taken a period of parental leave that is four weeks or less.
- They have taken a combination of ordinary maternity leave plus four weeks or less of parental leave (taken either before or after ordinary maternity leave).
There are some cases where employees have the right to return to their old job on their old terms and conditions unless it is ‘not reasonably practicable’: These are:
- Where an employee has taken some or all of their additional maternity leave (any part of the second six months of maternity leave).
- Where they have taken parental leave in excess of four weeks.
- Where an employee has additional maternity leave, which is immediately followed by a period of ordinary maternity leave or parental leave of any length.
However, it is unusual that it would be unreasonably practicable not to give an employee their existing job back unless their role has been made redundant. If this is the case and the role has been made redundant then a fair redundancy process should have been followed and employers must offer a suitable alternative job on similar terms and conditions.
3) Can employees reduce their working hours following maternity leave?
Returning to work after having a baby can be challenging and employees may wish to ask their employer if they are able to work more flexibly. This could be a reduction of hours, a change of hours or a change of workplace for example. To make a flexible working request, employees are required to put their request in writing. The employer should then review the request within three months of receiving the request.
Employers must have a sound business reason for rejecting any request, for example the burden of additional costs, an inability to recruit additional staff or a detrimental effect on ability to meet customer demand. If the request is agreed by the employer, this would constitute a permanent change to an employee’s terms and conditions unless agreed otherwise. This cannot then be changed without further agreement between the employer and employee. The employer and employee may agree to trial the flexible working arrangements or conduct the arrangement for a specified period of time.
4) How does maternity leave affect holiday entitlement?
Another area of confusion relates to holiday entitlement. Employees frequently ask if they can take their annual leave entitlement during their maternity leave so that they can be paid the extra amount. Also, to benefit the company so that they don’t have to take the annual leave before or after their maternity leave.
Statutory annual leave entitlements continue to accrue during statutory maternity leave even if the contract provides more than the statutory minimum. Employees can add holiday to the beginning or the end of their statutory maternity leave, but they cannot take it during a period of maternity leave.
Returning from maternity leave can be a daunting prospect for employees getting back into work and also for employers who are keen to follow the correct process. Implementing a clear, thorough policy regarding the requirements for both the employer and the employee can help to manage expectations, create a trusting environment and prevent legal challenges.