The Sunday Times - Business Doctor: Returning from maternity leave

Peter Done: Managing Director and Founder

August 08 2016

HL Writes: One of my employees is due to come back from maternity leave in just over a month, however she wants to come back to the same job but with less hours. As the needs of the business have changed since her leave I am not sure I can accommodate this. Please can you advise? The Equality Act 2010 makes it unlawful for employers to discriminate against employees due to their pregnancy or maternity, meaning that pregnant employees must be treated in the same way as other employees. All pregnant employees have the right to take up to 52 weeks maternity leave, regardless of the length of their service, however if the employee does not plan on taking her whole entitlement, she must give you at least 8 weeks’ notice of the date she intends to return. Staff returning from ordinary maternity leave (the first 26 weeks of maternity leave) have the right to exactly the same job they did before with “her seniority, pension rights and similar rights” and on terms and conditions no less favourable than if she had not been absent. If the employee chooses to take more than just ordinary maternity leave, she is still entitled to return to the same job she had if it remains reasonably practicable, and if not - to a job on no less favourable terms, conditions and status to her previous role.  If you fail to allow the employee these rights, it is likely that this will put her at a detriment and she will be able to make a claim for maternity discrimination. However, in some cases, the employee herself may wish to return to work on different terms and conditions, such as a part-time basis to manage work and family responsibilities. Some contracts may incorporate a right allowing employees a part-time return, different hours, etc. If there is no such contractual right, an employee may submit a flexible working request to vary her hours, place of work or working times when she starts work again. You should consider the request although you refuse it. Any refusal has to be fall within one of the pre-set statutory grounds for refusal. If you refuse the flexible working request without good reason, the employee may be able to successfully claim indirect sex discrimination. If a redundancy situation has arisen during the employee’s maternity leave and it is no longer practicable to employ her under her existing contract, she should be offered any suitable alternative positions available which are not “substantially less favourable”. You must offer any such vacancies to the employee on maternity leave in precedence over other employees similarly affected by the redundancy situation. If no vacancies are available, you should follow your standard redundancy procedure.

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