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Baby, Come Back: Rights on Returning from Maternity Leave

This month we welcome back the Head of our Employment & Immigration team, Melissa Vangeen, from a period of maternity leave.  With over 775,000 births in the UK in the year to mid-2014, Melissa is just one of thousands of women who have returned from maternity leave in the past year.  Whether an employee takes only the compulsory two weeks of maternity leave or the full 52 weeks available, it is vital that employers are familiar with their obligations to women returning from maternity leave.

A woman will be eligible for statutory maternity leave irrespective of her length of service.  Statutory maternity leave can last up to 52 weeks, which is made up of two periods of 26 weeks each.  The first period is known as Ordinary Maternity Leave (OML) and the second period is Additional Maternity Leave (AML).  Whether the mother wants to take the full 52 weeks is up to her; only the first two weeks of maternity leave are compulsory.

If an employee wishes to return to work before the end of the 52 weeks, she must give her employer at least eight weeks’ notice of her date of return.  The employer may agree to her returning on shorter notice or may delay the employee’s return to work if the employee has not given sufficient notice.  Similarly, if the employee previously notified the employer that she would return earlier than the end of the statutory maternity leave period, she can change her mind and delay her return subject to giving her employer at least eight weeks’ notice ending with the original return date.

There are of course ways for the employee to extend her time off after exhausting her maternity leave.  For example, she may agree with the employer to a period of discretionary authorised leave, or take her accrued untaken holiday from the maternity leave period.  Annual leave continues to accrue during a period of maternity leave, so returning employees often have a significant surplus of leave available.  Employees must have the opportunity to take the annual leave, and may not simply be paid in lieu, but an employer may be permitted to require an employee not to take annual leave at a given time under the contract.  An employee may also take parental leave, subject to giving at least 21 days’ notice of her intention to do so.  Employees may take no more than four weeks’ parental leave in any given year, and an employer may postpone the parental leave by up to six months to avoid undue operational disruption. 

An employee returning before the end of OML is entitled to return to the same job on the same (or no less favourable) terms than if she had not been absent (save in the case of redundancy); this includes an entitlement to benefit from any improvements as if she had not been away, such as a pay rise.  An employee returning after having taken any period of AML (or a period of at least four weeks’ parental leave on top of OML) is entitled to return to the same job or, if there is a reason that to do so would not be reasonably practicable, a suitable alternative job on no less favourable terms.  The same rules apply to employees returning to work in either the first 26 weeks or the second 26 weeks of Shared Parental Leave respectively.

Employers should also be aware that the right to request a flexible working pattern, which was previously limited to parents or carers, has been available to all employees with at least 26 weeks’ continuous service since 30 June 2014.  Employees may make such a request for any reason, although it remains most common for such requests to be made following a period of maternity leave in order to accommodate childcare requirements.  Although there is no longer a statutory process to follow when considering such requests, an employer must consider the request in a reasonable manner and notify the outcome to the employee within three months.  Employers should ensure that they follow the Acas Code of Practice in respect of flexible working requests. 

In addition, employers should be sensitive to nursing mothers’ needs to express and store milk if they are breastfeeding.  Employees should notify their employer of their intention to breastfeed so that the employer may conduct a risk assessment.  Although there is no statutory right to time off work for breastfeeding or a requirement for the provision of breastfeeding facilities, employers are encouraged to provide a private, healthy and safe environment for nursing mothers to express and store milk.  If there are health and safety risks identified, they must do all that is reasonable to remove the risks or make alternative arrangements for the employee.

Failure to comply with the requirements for returning mothers could result in an expensive discrimination claim in the employment tribunal, so as with a new baby preparation is key.  If you have any concerns or queries, please contact our Employment & Immigration team.


This article was first published on 30 June 2015 as part of our Employment Law Update series. Register above to receive our updates as soon as they are published, directly to your inbox!

This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.