The Right to Return to Work After Maternity Leave
The basic principals to follow when your business has an employee returning from paternal leave
It is well established that an employee returning from maternity leave (‘ML’) has a right to return to work.
The basic principles are:
- Establish whether an employee has taken ordinary maternity leave (‘OML’) or additional maternity leave (‘AML’) as well;
- An employee who has only taken OML has a right to return to the same job in which she/he was employed before her/his absence, on the same terms of employment as before, or that are not less favourable than previous terms of employment had she/he not been absent;
- If it is not reasonably practicable (for a reason other than redundancy) for the employer to permit an employee on AML to return to the same job (as it would for OML), the employer must permit their to return to another suitable alternative job on terms and conditions not less favourable than those which would have applied had they not been absent;
- If it is not practicable for an employee on ML to return to work due to redundancy they have a pre-emptive right to be offered any suitable available vacancy on terms and conditions not substantially less favourable that those applying to the old job, i.e. they were offered the job first, ahead of other employees who may be at risk of redundancy.
In addition to the above other issues may arise, including:
- The returning mother/father may effectively extend their ML by taking annual leave at the end. The employer must bear in mind that an employee on ML continues to accrue their statutory annual leave entitlement. The interplay of ML and annual leave, including the ‘carry over’ of annual leave is a complex area that cannot be covered within the scope of this note;
- The employee may make a request for flexible working on their return. For example, to adjust their start/finish times, or to reduce from a full time to a part time role. An employer must give proper consideration to such a request where the employee has a child under the age of 17 (18 if the child is disabled) and follow a statutory procedure. There are limited grounds to refuse such a request;
- Duties arising under health and safety provisions, including risk assessments and provision of suitable facilities for breast feeding mothers to rest and that they have adequate rest and meal breaks.
This area of law does have its legal and practical issues. Following procedures is not necessarily in itself protection for an employer, e.g. refusal of a flexible working request may give rise to a claim for unlawful indirect sex discrimination depending upon the circumstances of the case. Further, the way in which an employer deals with matters may give rise to a fundamental breach of contract on the employer’s part in response to which an employee may choose to resign and bring a claim for constructive unfair dismissal. Therefore, an employer who is faced with an issue with an employee on ML would be wise to take legal advice before acting. One wrong step may inadvertently lead to a costly automatically unfair dismissal or a direct / indirect discrimination claim (for which there is no cap on compensation).
By Vivienne Burbidge of Endeavour Partnership LLP – Solicitors, a UK200Group member firm