Maternity Rights: After the Birth
Published 09/06/2011 | 09:38
My previous three articles focused on maternity rights before the birth and on maternity leave and pay and this article will cover the issues on returning to work after maternity leave.
Unless otherwise agreed, the date on which an employee will return to work from maternity leave will normally be the first working day 52 weeks after her maternity leave began. This is because all employees are entitled to 26 weeks Ordinary Maternity Leave (OML) followed by 26 weeks Additional Maternity Leave (AML). Before she goes on maternity leave, her employer should inform her of the date her maternity leave ends, and this will be 52 weeks after it starts, unless the employer and employee have agreed on another date.
If the employee wishes to return to work before the end of her agreed maternity leave period, she must give her employer at least eight weeks’ notice of the date she wishes to return to work. This notice requirement applies during both ordinary and additional maternity leave. The eight weeks' notice period is the minimum the employer is entitled to expect, but the employer can accept less or no notice from the employee if the employer chooses to do so.
A woman returning to work in the same job after maternity leave, regardless of the length of leave she has taken, is entitled to benefit from any general improvements in pay or other terms and conditions which may have been introduced for her grade or type of work while she has been away. If the employer withholds this, the woman will have a sex discrimination claim.
After her return, each week of absence during OML and AML counts towards her period of continuous employment. Neither period of maternity leave leads to a break in service. During OML and AML each week of leave counts as a week's service for the purposes of length of service for both statutory rights, for example, redundancy, and contractual rights, for example, pension.
A woman returning to work after OML has the right to return to the job she was doing before she went on maternity leave. If her employer refuses to allow her to return, this is a dismissal and sex discrimination. If a woman is not allowed to return to work, she may claim her dismissal is automatically unfair if it is for a reason to do with her pregnancy or maternity leave. If her employer allows her to return, but to a job with different terms and conditions, this will also constitute a dismissal and/or detriment and sex discrimination. These claims can be made regardless of how long and how many hours per week a woman has worked for the employer.
A woman returning to work after AML has the right to return to the job she was doing before she went on maternity leave unless it is not reasonably practicable for the employer to offer a woman her job back. She must be offered one that is suitable for her and appropriate in the circumstances, on terms and conditions which are no less favourable than those which applied when she left. This means that any alternative job must be substantially the same, for example, a job with the same status and salary and/or bonus. If the employer fails to offer a woman a suitable alternative vacancy, or offers her an unsuitable one and then dismisses her when she refuses it, she will be treated as unfairly dismissed or will have a claim for having suffered a detriment. She will also be able to claim sex discrimination.
Further information on the full range of maternity rights is available from your local CAB. Guidance on maternity rights can be found on www.nidirect.gov.uk if you are an employee or worker and www.nibusinessinfo.co.uk if you are an employer.
Siobhan Harding is an Information and Policy Officer with Citizens Advice.