If you are returning to work after maternity leave you have certain rights and protection against unfair dismissal, detriment or discrimination connected to your pregnancy, childbirth or statutory maternity leave. In this blog I consider what rights you have on returning to work and possible issues on returning, including the right to request flexible working.
Right to return to the same job
If you have taken Ordinary Maternity Leave (OML), return before the end of your OML, or combine maternity leave with a period of shared parental leave where the total leave is 26 weeks or less, you are entitled to return to the same job in which you were employed before your absence. Your terms of employment must be the same as, or not less favourable than, they would have been had you not been absent, unless a redundancy situation has arisen. You will be entitled to benefit from any improvements as if you had not been away, such as a pay rise or any other changes to your terms and conditions for your grade or level.
If you have taken Additional Maternity Leave (where you take more than 26 weeks’ leave), have taken shared parental leave which when combined with maternity leave amounts to a total leave of more than 26 weeks or have taken a period of at least four weeks’ parental leave on top your OML, you are generally entitled to return to work to the same job and on the same terms and conditions but your employer has more flexibility. If it is not reasonably practicable for your employer to permit you to return to the same job (for example, if there has been a reorganisation), you are entitled to return to a different job which is both suitable and appropriate in the circumstances and your terms and conditions must not be less favourable than they would have been had you not been absent.
If you are not allowed to return to the same job on no less favourable terms and conditions of if your employer does not offer you a suitable alternative job, you may have a claim of pregnancy and maternity discrimination and automatic unfair dismissal (if you are dismissed) and/or unlawful detriment (if there is no dismissal). If you are offered a suitable alternative job but refuse to accept it, it will not be automatically unfair to dismiss you. If the offer is unsuitable, you may refuse to accept it and treat yourself as constructively dismissed (assuming there is no express dismissal) and bring a claim of unfair dismissal. Even if you accept an unsuitable offer, you may still bring a claim of unlawful detriment and/or sex discrimination if the change in job or terms was because or your pregnancy or maternity leave.
Flexible working requests
Among the recent findings of research published as part of the ongoing IFS Deaton Review of Inequalities is the fact that women are still much more likely than men to give up paid work or reduce their hours after having a baby. This is so, even if where they were the higher earner. See www.ifs.org.uk/publications/15359.
If you wish to return on different hours, you may request flexible working. If your employer refuses to allow you to work part time, or to change your working pattern, this may be grounds for bringing a claim for indirect sex discrimination. This is because it has been established that statistically more women than men have childcare responsibilities and are therefore disadvantaged by a requirement to work full-time. Your employer would need to show that there was objective justification for the requirement for you to work full-time. You will be entitled to compensation for a successful discrimination case. In addition, you may have a claim for constructive dismissal if you resign following your employer’s refusal to agree to your flexible working request.
Breastfeeding
There is no statutory right to time off work for breastfeeding but your employer is required to carry out a risk assessment and provide suitable facilities for breastfeeding mothers to rest and to provide adequate rest and meal breaks. Toilets are not considered ‘suitable facilities’. If you are treated less favourably because you are breastfeeding this is direct discrimination. If your employer refuses to allow you the flexibility you may need to breastfeed or express milk, this may be indirectly discriminatory.
Unfair dismissal, detriment and discrimination
It is automatically unfair for your employer to dismiss you or to select you for redundancy when the reason, or main reason, is connected to your pregnancy or the fact that you have given birth or taken statutory maternity leave. You may also have a claim for pregnancy and maternity discrimination in these situations.
Lincs Law Employment Solicitors Can Help You
If you are worried about returning to work after your maternity leave, call for an initial free consultation with one of our specialist employment law solicitors on 01522 440512. Alternatively, for more information about maternity discrimination, visit our website at https://lincslaw.co.uk/services/employees/workplace-problems/pregnancy-and-maternity-discrimination/
Kathryn Bolton
Specialist Employment Law Solicitor
Lincs Law Employment Solicitors
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