We regularly receive questions from employers that are worried about falling foul of the laws relating to maternity leave. Interestingly Tena carried out a survey of a 1000 mums’ which found that:

• It takes new mums nearly six months to readjust after going back to work – with nearly 25% saying the workplace was “completely different”.
• “Almost one in five felt their boss and colleagues didn’t understand what they had been through – mentally and physically – with 14% worried that this meant the effects of medical issues brought on by pregnancy and childbirth just made them look unprofessional.”
• Mums can feel isolated when they return to work and one in five women were in tears after just a few days of returning to work.
• “While 27% of new mums felt excited at the prospect of returning to work, 52% felt worried and 37% went as far as to say they were dreading it.”

Maltesers has joined Comic Relief in a great campaign in tackling the taboo around maternity mental health and supporting mums back into the workplace. The campaign has come up with 10 ways mums can be supported including physical spaces (for breastfeeding), a buddy system, offering flexible, hybrid or part time working options and so on. Please click on the following link to view the full 10 ways to support a mum’s return to the workplace: Maternity Return | Maltesers.  

In our experience, it is important that a balance is struck between supporting mums back to the workplace (as mentioned above), the employer fulfilling the needs of the business and complying with the relevant legislation surrounding maternity leave. Below we answer some FAQ’s with respect to maternity leave in an effort to help employers navigate 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/sex discrimination.

Please contact us if you would like more information about the issues raised in this article or any other aspect of employment law at 029 2034 5511 or employment@berrysmith.com