Maternity Leave – The right to return to the same job

Organisations change continuously, however many are faced with a dilemma when they have an employee returning from maternity leave. How should they approach her? Can they offer her new terms? Is there going to be a sex discrimination claim against them?
It is important for businesses to understand key facts when dealing with an employee who is returning from maternity leave.

Ordinary Maternity Leave (OML)

If the employee takes only OML, returns before the end of OML, or combines maternity leave with some shared parental leave where the total leave is 26 weeks or less, she is entitled to return to the “same job in which she was employed before her absence.” Her terms of employment must be the same as, or not less favourable than, they would have been had she not been absent, unless a redundancy situation has arisen. She will be entitled to benefit from any improvements as if she had not been away, such as a pay rise or any other changes to her terms and conditions for her position.

Additional Maternity Leave (AML)

Similarly, after AML an employee is generally entitled to return to work to the same job, on the same terms and conditions as if she had not been absent. However, where the employee has taken any period of AML, has taken shared parental leave which when combined with maternity leave amounts to total leave of more than 26 weeks, or has taken a period of at least four weeks’ parental leave on top of her OML, and there is some reason (other than redundancy) why it is not reasonably practicable for the employer to permit her to return to the same job:

• The employee is entitled to return to a different job which is both suitable for her and appropriate in the circumstances.
• The terms and conditions must not be less favourable than they would have been had she not been absent.

Conclusion

So, in summary, it is always advisable for a business to speak their employee just before she returns to work. She may wish to work flexible, which means that employers may need to consider whether the arrangement would work for their organisation. Employers can speak to their employee to discuss various options. However, employers need to be careful how they treat their employees who return from maternity leave to ensure that they do not take any action which may amount to a sex discrimination claim against them.

For advice on how to deal with an employee returning from maternity leave or a sex discrimination claim contact us on020 7903 6888 for a free consultation.

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