FAQ on your rights during maternity leave

Barristers Natasha Joffe and Lydia Seymour from Outer Temple Chambers have looked at the sort of issues people have raised during maternity leave and when they return to work.

Our responses are intended only to contain general information and preliminary guidance. They should not be used as a substitute for taking detailed advice specific to your situation. We have set out on this page some FAQs some suggestions for obtaining legal advice and such advice should be taken before making any decision. Our responses should not, therefore, be regarded as legal advice, and both we and Mumsnet disclaim any liability in relation to their use. We have endeavoured to provide accurate and up to date information, but no representation or warranty, expressed or implied, is made as to the accuracy of the information contained.

Many of the situations that you describe were horribly familiar, and it is clear that there is still a significant amount of discrimination against women who take maternity leave, despite the various legal protections. These FAQs address some of the main queries that people have about their legal rights when they return to work.

There're also some factsheets on the law in this area, which you can find here. If there are other areas that you think it would be helpful for us to cover then send us an email. 

We have put together a brief section on sources of legal advice (both free and paid for) which is at the bottom of the Q&A. One very important general point to bear in mind is that very short time limits can apply to Employment Tribunal claims and anyone who thinks that they may need to bring a claim against their employer should be aware that time limits are likely to apply and that they should therefore take specific advice as soon as possible.

Employer restructuring and 'forgetting' the people on maternity leave

A common problem for women on maternity leave is that they feel forgotten about when their employer has a restructure. They aren't in the office, which means they don't get consulted about what is going on and don't have access to information about new jobs that might be available.
 

What are your legal rights in relation to receiving information on jobs becoming available and restructures whilst off?

Your employer is not allowed to treat you less favourably because you are on maternity leave. So if other people are being provided with information on available jobs and restructuring, then it should be provided to you too. If it isn't, and you lose out because of that, you may have a claim that you have been discriminated against on the grounds of maternity.

Clearly, though, what you really want is to obtain the information, rather than to bring a claim against your employer. The first step would be to ask for the information (preferably in writing), explaining that you don't want to be placed at any disadvantage by reason of your maternity leave, so could they please send all relevant information to you. Given that you may not know much about what is happening, it is a good idea to make the request for information relatively broad - i.e. include information about the restructure, alternative jobs and any other important changes relevant to your role/team.


Redundancy situations which arise during maternity leave

Most employers know that a woman on maternity leave has additional rights when a redundancy situation arises, but there is some confusion about how far she is entitled to be put in a better position than her colleagues.
 

What protection is there for women on maternity leave when redundancies are being made?

There are three basic ways that the law tries to protect women on maternity leave in this situation.

  • First, you are entitled to be kept informed of what is going on, and provided with as much information and opportunity to comment about the potential redundancies as your colleagues who are not on maternity leave. Sometimes employers will say that they didn't send information in these circumstances because they didn't want to disturb your maternity leave, so it is a good idea to write to your employer to say that you would like to receive that information. If you want to be ultra-careful, then you can tell your employer before you go off that you would like to be kept in touch with any important developments at work. You don't need to specify that you are worried about redundancies and this will have the advantage of looking keen.
  • Secondly, your employer is not allowed to treat you less favourably because of your pregnancy and maternity leave. So, for example, if there is a redundancy selection procedure, then the selection criteria cannot be skewed against people on maternity leave, and cannot take account of pregnancy-related absence. Equally, it would be unlawful if your employer used the redundancy exercise as an excuse to get rid of you because you were on maternity leave
  • Thirdly, if your job is made redundant during the first 52 weeks of your maternity leave, and there is a suitable alternative vacancy in the business you work for (or an associated business) then you are entitled to be offered that role. This is the one area in which you are entitled to more protection that colleagues who are not on maternity leave.


Am I still entitled to maternity pay if I am made redundant before or during my maternity leave?

If you are made redundant during your maternity leave, you will still be entitled to your Statutory Maternity Pay (SMP). If you have contractual maternity pay as well, what you are entitled to after having been made redundant will depend on the terms of your employer's scheme.

If you are made redundant before your maternity leave, you might not be entitled to SMP. In order to be entitled to SMP you generally have to be employed for at least part of the 15th week before the week which contains your due date. However, if your employer dismissed you in order to avoid paying SMP before the 15th week, you would still be entitled to it. 

Even if you are not entitled to SMP, you are likely to be entitled to Statutory Maternity Allowance. Have a look at the Department of Work and Pensions website for more details on Maternity Allowance.


Flexible working

Disputes and problems arising from women wanting (or needing) to work flexibly after the birth of their baby are horribly common. Knowing your rights and putting time and effort into your flexible working application will put you in the best possible position to get what you are looking for. Bear in mind also that your employer may have genuine concerns about the work pattern you are suggesting, and the more flexibility you can offer the more likely it is that both of you will be happy. 
 

How do I go about making a request for flexible working?

Flexible working requests have to be made in a particular way. Make sure that your flexible working request complies with the requirements of the legislation. Your employer may have its own standard form. The NHS, for example, has a specific form for flexible working applications which will make sure you include the following necessary information.

  • You must state that you are making an application for flexible working;
  • You must specify the change applied for and the date on which it is proposed the change should become effective;
  • You must explain what effect, if any, you think making the change applied for would have on the employer and how, in your opinion, any such effect might be dealt with. It's good to provide a reasonable amount of detail here; you want to persuade your employer that what you are asking for is feasible;
  • You must explain how you meet, in respect of the child or other person to be cared for, the conditions as to relationship specified in the flexible working regulations (i.e. self-certify). In your case, you need to say you are the mother of children under the age of 17 and you have responsibility for bringing those children up.


Your application should be in writing and dated and should say when you made any previous request (there must be 12 months between requests). For those whose employers do not have a standard form, you can get one from the GOV.uk website.
 

Does my employer have to say yes?

Put shortly, no. If you make your application in the right way, your employer is under an obligation to have a meeting with you within 28 days to discuss the request, but they are under no obligation to agree to it. A flexible working request can be rejected on any of the following grounds:

  • burden of additional costs
  • detrimental effect on ability to meet customer demand
  • inability to reorganise work among existing staff
  • inability to recruit additional staff
  • detrimental impact on quality
  • detrimental impact on performance
  • insufficiency of work during the periods the employee proposes to work
  • planned structural changes

These are pretty broad grounds and employers can usually find a reason which fits into one of these categories if they want to turn down a flexible working request.

If your employer decides to reject your request, you should get an answer within 14 days in writing with details of the reasons why. You then have a right to appeal the refusal. This should be done within 14 days of the decision, should be in writing and should be dated. It should set out your reasons for appealing.

Unless your employer allows the appeal without a meeting, it must have a hearing within 14 days of your notice of appeal. You are entitled to a written decision within 14 days after that hearing. All of these time limits can be extended if you agree to that. You are entitled to have a companion at any meetings, who must be a colleague and could be your trade union rep, if you have one.
 

Can I do anything if my employer says no?

If, ultimately, your request is refused after an appeal and you are unhappy with the reasons given, you may be able to make an application to the employment tribunal. You can only complain about the flexible working request process itself if:

  • The reason given for refusal is not one of the permitted grounds
  • Your employer's decision was based on incorrect facts
  • Your employer failed to follow the flexible working procedures set out in the regulations


However, if you find it difficult to work the hours that your employer requires because of childcare commitments it may also be possible that you would have an indirect sex discrimination claim.

Indirect sex discrimination occurs when a 'gender neutral' provision - like having to work particular hours - is applied to everyone, but a significantly greater proportion of women (or men) are put at a disadvantage by it. The basic claim here would be that the refusal to allow staff to work reduced hours puts women generally at a disadvantage, because they are more likely to have primary childcare responsibility, and hence to be restricted in the hours that they can work.

If you do wish to bring a claim either because you feel that the flexible working request was not carried out in accordance with the statutory framework or for indirect sex discrimination please bear in mind that strict time limits apply to Employment Tribunal claims - you will need specific advice in respect of your particular claim, but generally you need to bring your claim within three months of the decision you are unhappy about (so if a decision is made on 5 April, for example, you generally have until 4 July to bring a claim) and there are only limited grounds on which that time limit can be extended. See the sources of advice detailed at the end of these FAQs.

 

Is it legal to claw back maternity pay if I don't return to work?

Starting with the good news - your employer cannot claw back Statutory Maternity Pay (SMP) if you don't return to work. This is true even if you never had any intention of returning.
Unfortunately this doesn't apply to contractual maternity pay. In relation to this the starting point is the terms of your contract which is likely to specify a particular period of time that you need to return for in order to avoid the money being clawed back. Assuming that your contract allows for clawback there is nothing unlawful about your employer relying on that provision to ask for the contractual maternity pay back. If you are made to repay money check that it is only the additional, contractual amount that you are charged and that your employer has not also tried to claim back the SMP.

If you are in a situation in which you cannot return to work through no fault of your own (e.g. if you are made redundant or your personal circumstances change such that it is genuinely not possible to return) then your contract may allow you not to pay the money back.

Even if it doesn't, and the terms of the contract state plainly that maternity pay will always have to be repaid in the event that you do not return to work, there may be scope to argue that there is an implied term of the contract that maternity pay will not have to be repaid if it is impossible for the employee to return to work. That means that although the contract does not actually say that the money will not be due in those circumstances, had the parties to the contract thought about this possible situation when they entered into the contract, they would both have agreed immediately that the repayment provisions would not apply.

If you are faced with a situation where your employer is trying to claw back maternity pay and you have been unable to come back to work or what your employer is doing doesn't seem to fit with the terms of your contract, you should consider taking specific legal advice. Please bear in mind that strict time limits apply to Employment Tribunal claims - you will need specific advice in respect of your particular claim, but generally you need to bring your claim within three months of the decision you are unhappy about (so if a decision is made on 5 April, for example, you generally have until 4 July to bring a claim) and there are only limited grounds on which that time limit can be extended. There's a round up of sources of advice here.

 


Can my employer refuse to allow me back to work because they prefer the person who has been covering my job?

The short answer to this is no, they can't, even if your employer can prove that your replacement is actually better at the job than you were. However, most employers are now aware that they are not allowed to actually say this is the reason, and now there is a risk that employers deliberately reorganise in order to try to retain the replacement employee and argue that you are redundant.

Luckily, the law makes it quite tricky for an employer to do this, because even if a genuine redundancy situation arose whilst you were on maternity leave, your employer would be obliged to offer you any suitable alternative job which was available, in preference to employees who were not on maternity leave. Your employer would also be obliged to provide you with the same information about the potential redundancy situation as you would have received if you were not on maternity leave.

If you are concerned that your employer is treating you in this way, you need to take advice promptly. Please bear in mind that strict time limits apply to Employment Tribunal claims - you will need specific advice in respect of your particular claim, but generally you need to bring your claim within three months of the decision you are unhappy about (so if a decision is made on 5 April, for example, you generally have until 4 July to bring a claim) and there are only limited grounds on which that time limit can be extended. See the sources of advice detailed at the end of this Q and A.

 

If I am pregnant and applying for a new job, do I have to tell my prospective employer?

Generally, an employer is not legally entitled to refuse to appoint to a post because of the applicant's pregnancy, but unfortunately employers all too often do avoid employing pregnant applicants. So it is sometimes safer (and perfectly legal) to keep quiet about your pregnancy until you know whether you have been appointed.


I am planning to take 12 months maternity leave. I was working part-time prior to maternity leave, but my employer is saying that when my maternity leave runs out I have to return to work full time. Can my employer do this?

The starting point here is that if you are returning to work within (or at the end of) the first 52 weeks of maternity leave you have the right to return to your old role on the same terms and conditions unless either:

  • the role is redundant; or
  • it is not "reasonably practicable" for you to return to the old job

If your employer is not saying that the role is redundant (which it generally won't be if it the same job and your employer wants it to be done for more hours), it can only lawfully refuse to allow you to return to your part-time role if it is not "reasonably practicable" for you to do so. That will depend on the reason why your employer has decided that the role cannot be done part-time, with the onus on your employer to prove that it is not reasonably practicable for you to return on that basis. Your employer will need a very good reason for the change.

Your employer would be taking a huge risk if it tries to dismiss you for refusing to come back on new terms and conditions, particularly if that decision was made during your maternity leave, as that could leave you with claims for: unfair dismissal; failing to allow you to return to work after maternity leave; sex discrimination (potentially both direct and indirect) and maternity discrimination.

If necessary, you may need to explain to your employer (including the HR department if there is one) that you have the right to return to your old role, and that you wish to do so. If a less formal approach does not work, you may have to consider bringing a grievance through your employer's grievance procedure.

If your employer nevertheless threatens to dismiss you if you don't work full time, then you will have to make a decision on whether to agree to the change or risk being dismissed and seek to bring a legal claim. If you are considering a legal claim then you should think about taking legal advice (which you can find here). Please also bear in mind that strict time limits apply to bringing a claim in the Employment Tribunal. You will need to take specific advice in respect of your potential claim, but generally you need to bring your claim within three months of a dismissal or other decision you are unhappy about (so if a decision is made on 5 April, for example, you generally have until 4 July to bring a claim) and this time limit will only be extended in limited circumstances.

 

 

Last updated: 15-Jan-2014 at 4:17 PM