When it comes to maternity leave ending, it is important to know where you stand, what your options are, and any basic assumptions your employer could reasonably make.
The first thing to remember is the length of maternity leave. It is made up of 26 weeks of ordinary maternity leave and 26 weeks of additional maternity leave. On occasion this can be extended with a prior agreement with your employer.
- Flexible return to work date
- Returning to work
- Not returning to work
- Unfair dismissal
- Protecting your maternity rights
Your employer will (as the default position) assume that you will take the full 52 weeks maternity leave entitlement. This does not mean you are forced to take the full 52 weeks but allows your employer to plan for a potential extended period of leave. If you decide that you would like to return to work earlier or later than originally planned, this is covered by your statutory rights.
In order to change your return to work date you need to write to your employer under the following terms:-
- If returning to work earlier, you need to advise your employer at least eight weeks before your new return date
- If you choose to return to work later, you need to let your employer know at least eight weeks before your original return to work date
Many people may also decide not to return to work after their maternity leave. The process around this scenario is often covered in your employment contract. If there is no specific notice period mentioned in your employment contract, you are legally obliged to give a minimum of one week’s notice.
Communication with your employer is the key to ensuring that your maternity leave is handled as smoothly as possible.
When returning to work after maternity leave there are two specific scenarios to take into consideration.
Where your maternity leave lasted no more than 26 weeks, you are in a strong position with regards to a return to work in your previous role. Your employer is obliged to:-
- Offer the same position you had prior to your maternity leave
- Maintain or better your pay and conditions – as if you had not taken maternity leave
If for example your colleagues received a pay increase during your maternity leave, then you would be entitled to this increase in salary. There may also have been improvements in working conditions, which must also be replicated in your contract on your return. At the very least, your previous employment pay and conditions must be maintained.
While the situation is slightly different when your maternity leave has extended beyond 26 weeks, there are still some protections. In some circumstances, your employer may be allowed to offer you a different role but there are numerous conditions. You could not be offered an alternative role if:-
- Your previous role still exists, even if they had given this to somebody else
- Your previous role would have been retained if you had not gone on maternity leave
- Your skill set was incompatible with a new employment offer
- Proposed pay and conditions were incompatible with your previous position
The condition regarding incompatibility with your previous position is an interesting one. If for example you were offered a new role which was full-time, although you were previously part-time, this would not normally be acceptable. It would be an option, if your lifestyle and your requirements were compatible, but you are protected to a certain extent. As we will cover later in this article, unfair dismissal and constructive dismissal are areas in which you also have specific protection.
The option to switch to flexible working and part-time hours is open to all employees, and often something utilised by those returning from maternity leave. You are entitled to ask your employer to consider a new working structure, which may include reduced hours, working from home or more flexibility. While your employer is not obliged to accept your request, they are obliged to provide reasons for a rejection.
It may also be in the best interests of both you and your employer to consider a trial period. If this works, then a permanent change can be instigated. If not, then further discussions may be required to determine your long-term role within the company. Whether or not your employer responds positively to your request, they are obliged to:-
- Acknowledge your request and arrange a meeting
- Provide a decision within three months of your request
- Contact you in written form
- Provide reasons for a rejection of your request
It is also important to note that even if your request is refused, this cannot be used against you. For example, in the past some employers may have seen such requests as a lack of long-term loyalty and dismissed employees. You are entitled to ask the question and you should not be penalised in any way, shape, or form.
While there may be a number of reasons why your employer has refused a request for flexible/part-time working, the more common reasons include:-
- Planned future structural changes
- Additional costs
- Potential detriment to the business
- Inability to recruit additional staff
- Business performance/output may suffer
- Wider repercussions on existing workforce
- An inability to meet future customer demand
- Proposed new hours incompatible with working practices
Again, communication between you and your employer is important. A lack of direct communication can lead to misunderstandings and disputes – always maintain a paper-trail. The majority of employers will positively consider your proposed change in working practices, but this needs to be compatible with their business and business practices.
Depending on your situation, you may decide not to return to work after your maternity leave. Contrary to popular belief, this is a statutory right and there are protections in place to ensure this is upheld. However, you will need to advise your employer accordingly:-
- Abide by your contractual notice period
- If no formal notice period, you need to give at least one week’s notice
At this point it is also worth mentioning holiday entitlement. This should be paid if you decide not to return to work. Many people are not aware, but, even during your maternity period you will still be building up your holiday entitlement. Make sure you are paid what you are due!
Again, there is a general misconception with regards to repayment of maternity pay. Whatever happens, you will never need to repay your statutory maternity pay/maternity allowance. Whether or not you return to work, this is your statutory entitlement. When we talk about repayment of maternity pay, this is in relation to additional payments included in your employment contract.
Believe it or not, many employers go above and beyond their statutory duty when it comes to maternity pay. This is often a means of retaining their workforce in the longer term and rewarding those in their employ. However, if you decide not to return to work after maternity leave you may be required to repay an element of your contracted maternity pay.
Traditionally, contracts which involve additional maternity pay, above and beyond an employer’s statutory obligation, will have further conditions. For example, you may need to return to work for a specific period of time in order to retain your full contractual maternity pay. This is one of the conditions you should be aware of when organising your maternity leave. However, it is important to note that:-
- In a worst-case scenario you would only be obliged to repay part/all of the additional contractual maternity pay
- You would never be asked to repay your statutory maternity leave/maternity allowance
- Using your holiday entitlement would reduce any repayment obligation
At first glance, this may seem relatively petty on the side of your employer. However, additional maternity pay above and beyond your statutory right is in effect an investment in your future, with your employer. Therefore, if for whatever reason you do decide not to return to work, your employer would not receive the benefits of this investment.
It is important to be aware that your employment position cannot be undermined or terminated as a consequence of your maternity leave. In the event that you believe your employer has used your maternity leave as a reason to terminate your employment, this would likely be classed as maternity discrimination – in other words, unfair dismissal. In this scenario there are a number of actions you could take:-
An informal appeal to your employer, pointing out the fact that your dismissal is illegal and discriminatory, can prompt a change of mind. Very often, informal talks can bring a swift end to a difficult scenario. While unlikely, it may be that your employer is unaware that they are acting illegally and discriminating against you.
If informal talks fail then the next course of action is a formal complaint to your employer. At this point they are legally obliged to respond to your complaint with reasons for the action they took. The majority of unfair dismissal cases tend to be agreed in some shape or form at this juncture. Whether the offer of an alternative role, or enhanced redundancy terms, there are numerous options open.
There are various conciliation services in the UK where third parties will rule upon employment related regulations. Unfortunately, even if you are in the right, your employer may not be legally obliged to recognise and act upon any ruling. This action is also time-barred; you only have three months less one day from the date you were dismissed, to take action.
The next step is an employment tribunal, which many people will be surprised to learn are legally binding. Even if your employer was to win a tribunal hearing, the negative press comment and “washing of dirty linen” in public is not a good advert. In some cases an employment tribunal decision can be challenged in the courts – or your employer may refuse to abide by the ruling.
Court action is the final roll of the dice when it comes to challenging an unfair dismissal. It is very rare for such cases to reach court, where every element of the dispute will be played out in public. It is also important to take into account the added expense and heavier evidence requirement when pursuing action in a court of law. Unfortunately, for some employees this can be the only option.
It is imperative that you are fully aware of not only your maternity rights but any contractual obligations towards your employer.
There are many areas of confusion when it comes to your statutory rights and action taken by your employer. Therefore, it is important to take professional advice as soon as possible, so that you can protect your maternity rights and also be prepared for changes in your situation.