It's surprising that despite the array of both domestic and European legislation intended to protect women during and after pregnancy, employers are still failing to comply with their legal obligations and to uphold employee's maternity leave rights when faced with an employee returning to work. 

Returning to the same job

In essence, employment law seeks to ensure that the employee returns with her seniority and pension rights intact and on terms and conditions no less favourable than those she was entitled to had she not been on maternity leave.

After ordinary maternity leave (26 weeks) an employee is entitled to return to her old job on the same terms and conditions that existed prior to her taking leave.

Where the employee is returning from additional maternity leave (52 weeks), if that is not reasonably practicable (for a reason other than redundancy), the employee must be offered a suitable and appropriate alternative job on no less favourable terms and conditions.
 
Case law has provided some clarification on the meaning of 'not reasonably practicable'. For example, it is not sufficient for the employer to offer a different role to the returning employee when her old job still exists, perhaps because her maternity cover has performed exceptionally well.   

Right to request part time flexible working

An employee may request to work flexibly on her return from maternity leave, for example, to work fewer hours, to work different hours or to work from home.

An employer must consider such a request properly and comply with a statutory procedure in dealing with the request. It may however refuse a request for flexible working where it has business grounds for doing so.

In arriving at its decision, the employer must be careful not to adopt any potentially sex discriminatory policies for example, by insisting, without good reason, that a job cannot be performed on a part-time, or job share basis.

Potential claims and compensation

Where an employer has unlawfully refused to permit an employee to return to her old job or properly consider a request for flexible working the employee may have a claim for sex discrimination and/or constructive dismissal. There is no cap on compensation where an employee is successful in her claim for sex discrimination.

What can you do about it?

There are express legal rights in place to protect you, as an employee from suffering any less favourable treatment during or on your return from maternity leave. However, enforcing such rights involves bringing a claim in the employment tribunal.

If you feel you are being treated unfairly or unlawfully you can approach your line manager or HR department to discuss your concerns informally.

If you don't wish to do this or you have tried to do so but it has not resolved the matter, then you should consider taking formal action using your employer's grievance procedure.

Although raising a formal complaint internally can be stressful for an employee, it may also be the best way to get matters resolved; an employer must investigate the matter once the issue is raised.

If you have an employment dispute we can help you make such a formal complaint to your employer and, ultimately, if the matter is not resolved advise you regarding bringing an appropriate claim in a tribunal.

Tell us what you think

All documents should be read and used in accordance with the terms and conditions. This document is for your general information only and is not a detailed statement of the law. It is provided to you free of charge and should not be used as a substitute for specific legal advice. If you require specific legal advice please contact our helpline on 03700 86 86 86.

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