There’s so much to consider when the end of maternity leave is looming: nanny or nursery, part time or full time work, when to stop breastfeeding… to name a few.
Knowing your rights in the workplace will help you plan your return and highlight the issues you need to consider before going back.
Once you’ve decided when to go back to work, what can you expect from your employer?
The law says:
- You have the right to return to the same job
- You get priority for alternative employment in redundancy cases
- You have the right to request flexible working conditions on your return to work
- You have protection from dismissal, mistreatment or discrimination by reason of pregnancy or maternity
- Your employer should have a staff handbook (in hard copy or on their intranet) that details its ‘family friendly’ policies, so make sure you have an up to date copy
Ordinary Maternity Leave – the first 26 weeks absence
If you take the 26 weeks of Ordinary Maternity Leave (OML) or less, you are entitled to go back to the same job you had 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 there is a redundancy situation. You will also be entitled to benefit from any improvements at work as if you had not been away like pay rises or any other changes to terms and conditions for your grade or level.
Additional Maternity Leave – the subsequent 26 weeks absence
If you have taken some or all of your Additional Maternity Leave (AML) or a period of at least four weeks’ parental leave on top of your OML and there is some reason (other than redundancy) why it is not practical for your employer to put you back in the same job (for example, if there has been a reorganisation) the rules are a bit different. In this situation you are entitled to return to a different job which is both suitable for you and appropriate in the circumstances and on terms and conditions that must not be less favourable than they would have been had you not been absent.
So what do you do if you find that you are presented with a different role?
Well it may be that you are happy to take what is offered if it suits you. Unfortunately there can be disagreement between employee and employer about what is suitable alternative employment. Some employers assume that if you take AML you automatically lose the right to your old job and are only entitled to return to a suitable alternative job. This is not true. Your employer must show that it is not ‘reasonably practicable’ to give you your old job back and showing this is more than just a formality. The problem is that there is little or no appeal case law on what ‘reasonably practicable’ might mean in these circumstances so if you find yourself faced with this scenario it’s a good idea to get legal advice to produce the best current legal arguments to support your case.
If you are not allowed back to the same job or your employer says it is not practical after AML and does not offer you a suitable alternative job, you may have a claim of discrimination and/or unfair dismissal.
If you are offered a suitable alternative job after AML and you unreasonably refuse to accept the offer, it will not be unfair to dismiss you. If you then made a claim in a tribunal you would have to show that the dismissal was unfair and you were reasonable to reject the alternative job.
Discrimination and unfair dismissal claims can be complex though so do seek some specialist advice. Most sensible advisors will be happy to offer a free 15 minute telephone consultation to give an initial view on your case and if tell you if it’s worth taking any further.
Many mums returning to work might want to work more flexibly to suit their childcare arrangements and work life balance. Any employee who has a child under the age of 17, or a disabled child under the age of 18, has the right to request flexible working patterns.
Your employer can refuse the application but only on certain grounds.
It is important to remember that this is a right to request flexible working not a right to work part time or flexibly. You can request a change to the hours and/or times you work and ask to work from a different location (for example, from home).
The request must be:
- In writing,
- Setting out the changes you want
- The anticipated effect the changed work pattern would have on your employer’s business and
- How these might be dealt with
Your employer must then follow a procedure within a set timescale involving:
- Meeting with you within 28 days of the date of request
- Considering the request
- Giving their decision in writing and notifying you of your right to appeal if the request is rejected
With all of this in mind you need to make sure you submit any request well in advance of your intended return date.
If your flexible working request is refused you may consider a claim under the flexible working regulation, again there are set legal processes to follow so seek advice.
Health and Safety
An employer must assess the workplace risks and alter your working conditions or hours of work to avoid any significant risk.
The requirement to assess risk includes the following:
- Considering a mum who is breastfeeding (which includes expressing milk)
- Providing adequate rest and meal breaks
- A legal requirement to provide somewhere for pregnant and breastfeeding employees to rest. Where necessary, this should include somewhere for them to lie down.
You have no statutory right to time off work for breastfeeding and there is no legislation which requires the provision of facilities for breastfeeding itself.
However, Health and safety guidance recommends that facilities such as a private, clean environment for expressing milk and a fridge for storing it, should be provided. Toilets are not suitable facilities.
This article is a very brief overview and is not intended as legal advice. If you find yourself in difficulty back at work the best thing to do is get help from a lawyer. Many mums go back to work without a hitch to family oriented, supportive employers but it’s useful to know what your rights are if things do not run as smoothly as you would like.
By Laura Milne, Employment Law expert from Lime HR.