I regularly receive questions from employers that are worried about falling foul of the laws relating to maternity leave. In this article I answer some of those questions, in an effort to help navigate employers through this heavily legislated area.

Does an employee have the right to return to the same job after her maternity leave ends?

The answer to this will depend on the length of the employee’s maternity leave. Where it lasts six months or less, she will have the right to return to exactly the same job, with the same terms and conditions. Alternatively, where an employee takes more than six months’ maternity leave and it is not reasonably practicable for her to return to the same job, she can be offered a similar job. In this scenario, the new role must be offered on terms no less favourable than the terms which applied to her previous role. This means that, for example, it would be unlawful to reduce her salary or remove a contractual benefit such as a company car.

What happens if a redundancy situation arises during an employee’s maternity leave?

The main difference in the redundancy process when a business is dealing with an employee on maternity leave relates to the stage in the process when alternative employment must be considered. At this stage, any suitable alternative employment must be offered to an employee on maternity leave before any other employee,  without the need for an application process.

If no suitable alternative role is available within the business, a woman on maternity leave can lawfully be made redundant provided that the reason for the redundancy is not connected to her pregnancy or maternity leave.

Is an employee entitled to take paid time off for antenatal care?

All pregnant employees have a statutory right to paid time off for antenatal care which has been recommended by a registered medical practitioner, registered midwife or registered health visitor.

With the exception of the first appointment, an employer can legitimately ask a pregnant employee to produce evidence of antenatal appointments, such as a certificate confirming pregnancy (e.g. a MAT B1 form) and an appointment card.

Can an employee change her mind about the start date for maternity leave?

Yes. If an employee wants to change the start date of her maternity leave she must give her employer 28 days’ notice before the date she originally intended to start her leave, or 28 days’ notice before the new date, whichever is earlier. The employee can give a shorter period of notice if 28 days is not reasonably practicable for any reason.

Does an employer have to consider an employee for promotion if she is on maternity leave?

Yes. A failure to do so could potentially amount to maternity discrimination.

If  you would like more information about any of the issues raised in this article or any other aspect of employment law, please do not hesitate to contact at 029 2034 5511 or employment@berrysmith.com.

Rachel Duncan – Solicitor, Employment & HR