Your right to return to work after maternity leave
Your right to return to your job depends upon how much maternity leave you have taken. There are different rules which apply depending on whether you return during Ordinary Maternity Leave (the first six months) or during Additional Maternity Leave (the following six months).
Returning during Ordinary Maternity Leave
If you return during this time, you have the right to return to your old job unless that job no longer exists.
You are also entitled to come back to work on the same terms and conditions as you would have had if you had never been away. That includes things like pension and length of service rights, for which your period of OML should be treated in the same way as if you had been at work.
It also means that your employer is not allowed to demote you when you come back, or make life more difficult for you in subtle ways like giving you less interesting work, or work which is of lesser status.
Be aware that if your job always involved some flexibility, you may not be entitled to return to identical duties. For example if you were a teacher who taught different primary school years, moving you from teaching reception to teaching Year 2 may well not count as changing your job.
Returning during Additional Maternity Leave
If you go back between six months and a year of maternity leave (i.e. during your Additional Maternity Leave), then you still have the right to return to your old job (provided that it exists), unless your employer can show that it is not ‘reasonably practicable’ for you to return. There are no hard and fast rules about when it is not reasonably practicable for you to return, but it is quite a high hurdle for an employer. It is not enough for your employer to say that it would be inconvenient or difficult - they have to show that there is a very good reason why it would not be possible.
If your employer will not give you your old job back, you are entitled to another job which is suitable for you and appropriate in the circumstances.
As with coming back after less than six months, you should not be disadvantaged in relation to your job by having taken Additional Maternity Leave. So in relation to contractual and length of service rights (other than pensions) your period of AML should be treated in the same way as if you had been at work.
The position in relation to your pension is slightly more complicated. The general rule is that whilst you are on paid maternity leave (including when you are only getting SMP) your employer is obliged to carry on making pension contributions on the basis of your salary before you went onto maternity leave. However, your individual pension rights will depend on the type of scheme that you are in and, in some cases, the rules of the particular scheme. If you have a detailed query on the effect of your maternity leave on your pension the first step is to ask your pension provider what rules they apply to your situation.
Telling your employer when you are coming back
If you want to take your full 52 weeks maternity leave (Ordinary and Additional) you don't have to tell you employer when you are coming back, although obviously it is a good idea to do so.
But if you want to go back early (including if you want to go back at the end of the first six months) you need to tell your employer at least eight weeks before the first day you want to go back to work. This is important, as if you don’t give that notice your employer can insist on you waiting for those eight weeks even if you are ready and willing to work.
If you are an ‘employee shareholder’ (you will know if you are because you will have entered into an agreement to be one), you have to give 16 weeks' notice of your return date.
What if I am sick on the date when I am supposed to return?
You should notify your employer of your sickness in accordance with whatever procedures your employer has in place. You will then be treated as having returned. You will be on sick leave and entitled to whatever sick pay you are due under your contract.
What if I want to take annual leave immediately after my maternity leave?
You will need to give your employer notice that you wish to take a holiday. The amount of notice will depend on whether you are exercising your statutory right to annual leave or a contractual right. For the statutory right you have to give twice as much notice as you want to take holiday (so two weeks’ notice for a week’s holiday.) And your employer may be able to require you to take the leave at a different time. If you are exercising a contractual right you will need to look at the notice provisions in your contract.
What if they prefer the person who replaced me?
You still have the right to have your job back. Even if your employer can show that the replacement was better than you they are not allowed to refuse your right to return.
Redundancy during maternity leave
This is a complicated area of the law, but is a situation that many women face during their maternity leave.
The law tries to recognise the fact that women who are on maternity leave are particularly vulnerable to being made redundant - both because an employer might be deliberately looking to get rid of them and because they lose out from not being actually at work when decisions are being made.
To try to redress the balance, you are entitled to be consulted in relation to any redundancies that are being proposed just as you would have been if you had been at work. You should also not be disadvantaged by your maternity leave in the redundancy process. So, to take an obvious example, your employer can’t decide who will be made redundant on the basis of productivity over the last six months, and choose you because you haven’t been at work and so haven’t produced anything.
But your job is not guaranteed just because you are on maternity leave. As long as the selection process doesn’t disadvantage you because of your pregnancy or maternity leave, you can be put in a pool of people at risk of redundancy alongside your colleagues and could be picked if you did less well in the selection process than your colleagues.
If you are chosen for redundancy the law kicks back in to try to help you by giving you priority over other people if there are any other jobs in the organisation (or with an associated employer). So if there is a suitable alternative role you should be offered it, keeping the same terms and conditions as your old job.
What if my employer does not comply with my rights?
You may well be able to bring a case in an employment tribunal for unfair dismissal and/or sex discrimination. Take advice promptly because employment tribunal claims generally have to be submitted within three months of the dismissal or other bad treatment.
This content was created for Mumsnet by two barristers specialising in discrimination and parents' rights at work, Natasha Joffe and Lydia Seymour. Please have a look at our disclaimer and bear in mind that the information provided is no substitute for specific advice on your individual case.
Last updated: about 1 year ago