MNHQ here: 7th-11th June FREE legal advice from Maternity Action about issues at work related to pregnancy and parenthood

[JuliaMumsnet]

Are you confused about your rights during maternity leave? Have you come back to find you're in a completely different role? Has your employer told you it's not possible to take parental leave? Do you think you are being treated differently since becoming a parent? Mumsnet and Maternity Action have got you!

We are teaming up again to provide an online legal clinic - where anyone can come and ask a question and get free advice on pregnancy, maternity and parental rights at work from qualified employment solicitors and barristers who are members of the Employment Law Association. We're really glad to be able to provide this resource for all women and parents. We see on the forums that this is a huge issue, especially during covid.

There are no stupid questions, so go ahead and please spread this around to friends and family!

Once you ask your question, the specialist solicitors and barristers will take necessary additional detail via private messaging before posting up answers and advice (this information will never be shared, will be deleted, and is only to make sure sure that there is no conflict of interest).

HOW IT WORKS
If you have a question about how you are treated and what your rights are at work during pregnancy, maternity or parental leave please post it below!

Some questions Mumsnet users asked last time:
I was made redundant in July whilst on maternity leave, two weeks after my mat leave started which was four days after my baby was born. I’ve found that you only have 3 months to do anything about this, is this true?

I've just returned from maternity and my role has changed, I've got fewer responsibilities than before my maternity. I don't have an up to date contract either. Do I have any rights or do I have to accept my reduced role?

Please give as much information as possible but remember that anyone can see this page so don’t name your employer (you send more info by private message). Next step is to send your name and the name of your employer by private message to MaternityActionfreeadvice so that it can be passed on to the volunteers to do a conflict of interest check. They cannot respond until you do this.

The clinic will run from Monday 7th to Friday 11th June. The advisors will do their best to answer questions within the week - but some may take a bit longer.

Terms and conditions – please read

The advice provided to an individual poster is based only on the information provided by that poster. Advice on this thread is also particular to the individual who has asked for it and is likely to be specific to that person’s situation. A poster may have provided further relevant information by private message which will not appear on this thread. So please take care if you choose to apply that advice to your own situation - it is recommended that you first take legal advice from one of the sources we have suggested here.

Mumsnet, Maternity Action and Maternity Action's volunteers accept no liability for any loss suffered as a result of an individual choosing to follow advice provided to another poster's question on the thread.

The lawyers, all of whom are specialists in employment law, will be working as volunteers for Maternity Action in respect of the clinic. Any personal information collected as a result of the clinic will be held by Maternity Action and will be deleted after 18 months. If you wish to make a complaint about the service you received, you can use Maternity Action’s complaints policy here.

[Maggie137]

I am a secondary school teacher on mat leave. I have a TLR. I have requested to go back to work 4 days in September which has been approved but only if I agree to 22 hours. I have huge concerns about being able to fulfil the role within these hours and this wouldn't cover mandatory after school training, parents evenings, middle leader meetings and extra curricular clubs that we are all expected to deliver. Any advice on how to approach this?

[Seren20]

I’m pregnant and on a Fixed Term Contract through to the end of March 2021. I’m due near the end of 2021. The company’s maternity pay policy gives a few weeks at most of salary, a couple of months half pay and then statutory pay. It also states that you have to intend to return after your mat leave which I’d like to do but realistically this isn’t going to happen before the end of my FTC as I’d like to take more than 3 months off. As a result I’m not sure how much maternity pay I will qualify for or my legal position in relation to the job, which whilst a FTC has been extended several times.

[ArchbishopOfBanterbury]

Because of covid I have a lot of unused time off this year. I'm due in September.

I've been told I can't carry over my holiday after mat leave, so need to use it up before I go. I've also been told the role of my mat leave cover can't be extended beyond a year - so if I don't want to waste my holiday, I can't do a full handover (or if I do, the cover role would start early, and I'd have to go back earlier, before my baby was a year old.)

Does that seem right?

[8dpwoah]

Not as stressful a situation as many ladies on here but I'm being made redundant (all above board) about 6 weeks before my due date. I will be paid SMP in a lump sum and 'start' my 'mat leave' the day after my job finishes.

Am I then classed as on statutory leave (and if so how do I prove it as SMP will be on final payslip and I'll have no PAYE or anything like that going on) or am I an unemployed person who happens to have a small baby? I've come across a few instances where it would be helpful to know what I would be defined as and how long that status would last ie is it 9 months 'on leave' from a nonexistent job as have had SMP for that period, or 12 months as that's how long I could have taken? Or am I just unemployed from day one until I start a new job and the SMP payment doesn't make any difference, other than financially of course!

[StarskyH]

Hello

I am hoping you can advise me. Whilst on maternity leave a secondment came up at my work which was for the role above mine, so a promotion. Had i been in work i would have definitely been expected to apply as they rarely come up and i have been working towards it for a number of years.

I wasn’t told about the secondment whilst on maternity leave and found out about it later from a colleague, at this point the position had been filled.

I was disappointed but the fixed term of the secondment was due to end when i returned to work so i thought if the role was made permanent i would have a chance to apply for it then.

However the position was not readvertised at the end of the fixed term and the person who did the secondment was interviewed for the post and was made permanent

My questions are:

Should I have been told about the secondment/promotion opportunity when on maternity leave?

Should they have given me an opportunity to apply for it on my return to work when the role was being made permanent?

Any help gratefully received, thank you

[Yvaine24]

Hi,

I came back from maternity leave and handed in my notice.

I am being asked to repay all my Enhanced Maternity Pay. It does say this in the staff handbook.

I don’t know if they have made everyone who has left in my position pay back their EMP. Is there any requirement to disclose if there are others that haven’t?

I also asked to go down to a four day week until I left and offered to use holidays but the response was that there was no business case for this.

Is there any further steps I could take?

[MaternityActionfreeadvice]

@Seren20

I’m pregnant and on a Fixed Term Contract through to the end of March 2021. I’m due near the end of 2021. The company’s maternity pay policy gives a few weeks at most of salary, a couple of months half pay and then statutory pay. It also states that you have to intend to return after your mat leave which I’d like to do but realistically this isn’t going to happen before the end of my FTC as I’d like to take more than 3 months off. As a result I’m not sure how much maternity pay I will qualify for or my legal position in relation to the job, which whilst a FTC has been extended several times.

Dear Seren20

Thank you for your query. Providing you meet the qualifying conditions for Statutory Maternity Pay, you will remain entitled to SMP for 39 weeks (9 months) even if your fixed term contract ends at the end of March 2022 (I think you meant 2022, not 2021). Your SMP will be 6 weeks at 90% of your average earnings and 33 weeks at £151.97 per week (or 90% of your average earnings if lower). This is not repayable if you can't return to work and your employer must pay it in full even if your contract ends.

However, if your fixed term contract is not renewed, your right to your company's maternity pay will also end when your contract ends (as it's an employment benefit) unless your company's policy specifically provides that it will continue for what would have been the remainder of your maternity leave period or you can negotiate this as part of a redundancy package. You will also need to check what your company's policy says about repayment conditions because again, unless there are special provisions about fixed term contracts (such as in the NHS maternity policy) or you can negotiate otherwise, any enhanced maternity pay you receive prior to your contract ending will be repayable unless you are able to return to work for the period required.

It is likely that in order to benefit from your employer's maternity pay you will need to find out whether your contract is going to be renewed. Non-renewal of a fixed-term contract is a dismissal and you are entitled to written reasons for the dismissal. If you have at least two year's service you will be entitled to a redundancy payment. Your employer must consult with you and have a fair reason for ending your contract. It may be pregnancy/maternity discrimination if your contract is not renewed because of your pregnancy or absence on maternity leave.

You can find more information from ACAS here: www.acas.org.uk/dismissals You should get further advice if your contract is not renewed and please note that there is a three month time limit for starting a claim in an employment tribunal: maternityaction.org.uk/where-to-go-for-more-help-legal-clinic/

I hope that helps.

[MaternityActionfreeadvice]

@8dpwoah

Not as stressful a situation as many ladies on here but I'm being made redundant (all above board) about 6 weeks before my due date. I will be paid SMP in a lump sum and 'start' my 'mat leave' the day after my job finishes.

Am I then classed as on statutory leave (and if so how do I prove it as SMP will be on final payslip and I'll have no PAYE or anything like that going on) or am I an unemployed person who happens to have a small baby? I've come across a few instances where it would be helpful to know what I would be defined as and how long that status would last ie is it 9 months 'on leave' from a nonexistent job as have had SMP for that period, or 12 months as that's how long I could have taken? Or am I just unemployed from day one until I start a new job and the SMP payment doesn't make any difference, other than financially of course!

Dear 8dpwoah,

Thank you for your query. It's a good question as this causes a lot of confusion.

As your job is ending you won't in fact be on 'maternity leave' as 'leave' is the legal right to have your job held open for you so that you have a job to return to and you will be regarded as unemployed once your job ends. However, as you state that you have qualified for SMP you will be regarded as being in your 'maternity pay period'. This lasts for 39 weeks (9 months) from the start date. In your case it will be 39 weeks from the date your employment ends and your employer pays it in a lump sum. If you start working for a new employer (who didn't employ you in the 15th week before your baby was due) within the maternity pay period you will need to return any weeks of SMP to your old employer.

Unfortunately the maternity pay period is treated in different ways depending on what other benefits you are claiming. For example, if you are claiming Universal Credit, the lump sum payment will only be treated as being paid in the month in which you receive it and it won't be taken into account in any subsequent months. However, there are some older 'legacy' benefits where the SMP payment will be taken into account over the 39 week pay period so please get further advice if this applies to you. Please also bear in mind that although you will be unemployed you cannot claim contribution-based jobseeker's allowance during your 39 week pay period as you are treated as 'unavailable for work' during this period.

I hope that helps.

[8dpwoah]

Thank you so much, that really helps to clarify my status! I've never read about maternity pay period before but that makes a lot of sense and now I know what to call it when speaking to other agencies. Thanks again!

[Maw45]

Hi, I have been having some problems with my employer whilst on maternity leave and looking for some legal advice please. I have been working for my employer for over 2 and a half years. I had a baby in September and is now 9 months old. During maternity leave I have been missed out of training opportunities and important information that all of my other colleagues received. I was also recorded in a zoom meeting under pressure to consent by two senior staff. I haven't been provided with a copy of this recording or minutes of the meeting despite repeated requests for either and ideally the video deleted as I was visibly distressed in it. Additionally they have recently circulated a confidential document by email that should have only gone to me to other staff and didn't flag this up to me until I realised a few days later. Following a grievance hearing and grievance appeal hearing (carried out by my employer's HR company) they have recommended that the grievance be dismissed in its entirety. They still haven't provided me with the recording or minutes and they have not taken responsibility for the way they have made me feel excluded and pushed out. I just want to leave as I can't face seeing them again after all the stress they've caused. What can I do next?

[MaternityActionfreeadvice]

@Maggie137

I am a secondary school teacher on mat leave. I have a TLR. I have requested to go back to work 4 days in September which has been approved but only if I agree to 22 hours. I have huge concerns about being able to fulfil the role within these hours and this wouldn't cover mandatory after school training, parents evenings, middle leader meetings and extra curricular clubs that we are all expected to deliver. Any advice on how to approach this?

Dear Maggie137

Thank you for your question.

Provided you are an employee with at least 26 weeks’ continuous service, you are entitled to request flexible working for any reason (s80F Employment Rights Act 1996). It appears from your question that you may have already started this formal process with your employer, but if not, you can ask for a copy of your employer’s flexible working policy or see if you can locate it e.g. within the staff handbook or on the intranet. We will provide some general information about the statutory application process in case you have not yet gone down this route.

You can only make a statutory flexible work application once every 12 months. The National Education Union therefore recommends that teachers make an informal request for flexible working first, and only make a statutory request if the informal request is refused.
You must include the following information in your statutory flexible work application:
• State that it is an application for flexible work under s80F of Employment Rights Act 1996.
• State the working pattern you are asking for and the date you want it to start
• Explain what effect, if any, you think the new working pattern would have on your employer and how you think it could be dealt with (e.g. how they could ensure workload is being covered that you would not be able to do within your newly proposed working pattern)
• State whether you have asked before and, if so, when
• Sign and date the application

After you have submitted your formal application, your employer should consider your application and arrange to meet with you to discuss it in more detail. Your employer should allow you to be accompanied by a work colleague or representative to any meeting to discuss your request and any appeal (para 5 ACAS Code of Practice). It’s a good idea to bring someone with you even if you feel confident about the meeting, as they can help you take notes and act as a witness.

Your employer must deal with your request in a reasonable manner (which would include, for example, considering your views on any counterproposals they make). They should notify you of the outcome of your request (including their response to any written appeal you make) within a 3-month period (although this decision-making period can be extended by agreement).

While you have the right to ask for flexible working, you do not have the right to get the arrangement you want. However, your employer can only refuse your request for one of the following reasons:
1. There would be a burden of additional costs;
2. It would have a detrimental effect on their ability to meet customer demand (in your case, this could mean a detrimental effect on your school’s ability to meet pupil needs);
3. They are unable to reorganise the work among existing staff;
4. They are unable to recruit additional staff;
5. It would have a detrimental effect on quality;
6. It would have a detrimental effect on performance;
7. There is not enough work during the periods you want to work; or
8. Your employer is planning structural changes or reorganising work and the request will not fit with these plans.

In your case, it appears that your employer is willing to offer you flexible working but not on the terms you have asked for. If they have rejected your proposal, they should explain their rationale for doing so, and which of the 8 refusal reasons their decision falls under.
With this in mind, we suggest that after submitting a formal statutory application (if you have not done so already), you should prepare evidence to share with your employer about your current working pattern and responsibilities (either during the meeting or via email). You’ll need to demonstrate to your employer why you think that it would be difficult or impossible to meet all of your responsibilities in 22 hours. It may be unreasonable for your employer to ask you to relinquish all of your TLR responsibilities if you return to work part-time; this could be regarded as an imposed demotion which may potentially amount to indirect sex discrimination (depending on the specific circumstances).

We suggest you create a list of your responsibilities and the approximate time each one takes, per week or per month (and, if relevant, the times these would normally need to be carried out). You could then draft a proposed working timetable for a 4-day week, indicating when and for how long you would work on each responsibility. This might help you challenge any unreasonable requests to ‘squeeze’ your workload into a 22-hour week.
You should treat the meeting to discuss your flexible working request (and/or any follow up calls/email correspondence) as a negotiation. Be prepared with evidence for your proposal. As well as written information, do you have any managers or colleagues you could name, who your employer could interview to get some insight into the proposals being made by both sides? For example, someone who could comment on the typical workload that TLR entails and/or how workable any solutions you have come up with are (e.g. a job share)?
Also consider in advance whether and how much you would be willing to compromise from your starting position of 4 days. Try to come up with some alternatives that would work for you, with perhaps two or three different workable scenarios – for example, could your employer arrange for a job-share for some of your responsibilities, regular time off in lieu, or could you have an alternating working week (e.g. 3 days, then 4 days)? It will be more difficult for your employer to justify refusing several options than it will be to justify refusing just one scenario.

One thing to consider as part of your discussions is trial periods. There is no requirement for any new working pattern to be subject to a trial period (and no right to insist on one), but you may want to request one to ‘try out’ any new working arrangement being proposed, before committing to a permanent contractual change to your working pattern (in which case the 3 month decision making period will need to be extended by agreement). The trial period should be no longer than is needed to make a reasonable assessment of how the proposed flexible working arrangements will work in practice. A trial period can help both you and your employer see how sustainable any new working arrangements might be; what impact they have on e.g. you, your colleagues, and your pupils; and if any tweaks are required before agreeing a final pattern.

If your employer refuses your request for flexible working, there is no statutory right to appeal. However, para 12 ACAS Code of Practice states that it is best practice to allow appeals. If you appeal your employer’s decision, you should follow any workplace policy on appeals. You will have their reason for refusing your application and you can use this as an opportunity to rebut their reasons, or to propose further alternative working patterns.

Finally, if your employer refuses a perfectly reasonable, workable request out right; seriously mishandles the procedure; or has insufficient justification for their refusal, you may be able to challenge their decision under sex discrimination laws (depending on the circumstances, including the reasons given for refusal). It is generally accepted by Employment Tribunals that women tend to have more caring responsibilities than men, and therefore women tend to be more disadvantaged by having flexible working requests refused. For guidance on bringing an Employment Tribunal claim for discrimination, please check the Maternity Action and ACAS websites.

We recommend that you take a look at the following resources:
• Maternity Action advice on child friendly working hours: maternityaction.org.uk/advice/child-friendly-working-hours/
• ACAS Code of Practice on flexible working requests: www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests/html
• The National Education Union’s guide to teacher’s maternity rights: neu.org.uk/media/2551/view

[MaternityActionfreeadvice]

@Maw45

Hi, I have been having some problems with my employer whilst on maternity leave and looking for some legal advice please. I have been working for my employer for over 2 and a half years. I had a baby in September and is now 9 months old. During maternity leave I have been missed out of training opportunities and important information that all of my other colleagues received. I was also recorded in a zoom meeting under pressure to consent by two senior staff. I haven't been provided with a copy of this recording or minutes of the meeting despite repeated requests for either and ideally the video deleted as I was visibly distressed in it. Additionally they have recently circulated a confidential document by email that should have only gone to me to other staff and didn't flag this up to me until I realised a few days later. Following a grievance hearing and grievance appeal hearing (carried out by my employer's HR company) they have recommended that the grievance be dismissed in its entirety. They still haven't provided me with the recording or minutes and they have not taken responsibility for the way they have made me feel excluded and pushed out. I just want to leave as I can't face seeing them again after all the stress they've caused. What can I do next?

Dear Maw45

I am sorry to hear you have been having difficulties during your maternity leave.

In your message you identify a few issues:

Missing out on training and important information whilst on maternity leave, leading you to believe that you have been excluded and pushed out;
The recording and minutes of a staff Zoom meeting in which you were distressed, which you would like a copy of and ideally its deletion;
The circulation to staff of confidential information;
The failure to uphold your grievance (which I assume covers all of the above matters); and
The failure to provide you with the recording and minutes (I assume of the Zoom meeting and the grievance hearing).

You ask what the next steps will be.

The next step will be to notify ACAS of your potential claims and to raise your claims in the employment tribunals if you are not happy with the outcomes of your grievance and the appeal. You have three months’ (less one day) from the matters you complain of to do so. It is important to notify ACAS promptly to ensure that you do not go over the limitation period.

You may also wish to raise another grievance in respect of any fresh matters about which you want to complain which have arisen after the matters you set out in your message.

You will need to notify ACAS of your potential claims on which I recommend you seek further advice:

1. Maternity and/or sex discrimination relating to the detriment of missing out on training/important information whilst on maternity leave;

1. Breach of confidentiality/GDPR relating to the dissemination of confidential information;

1. Breach of trust and confidence in response to the above matters and your employer’s failure to reasonably uphold your complaint and deal with these issues fairly (and further maternity/sex discrimination if the findings reveal any evidence of this).

The breach of trust and confidence would potentially entitle you to resign in response to the breach and claim constructive unfair dismissal as you have been with your employer for more than 2 years. However, these are difficult claims to bring and you would need to resign promptly in response to the matters you complain of as otherwise there may be an argument that you have accepted or “waived” the breach. However, you should consider doing so very carefully as you would of course then be unemployed. It is an important decision to make and you should consider taking further advice at this stage to see how strong your claims are based on your evidence and the findings of your employer’s HR Company.

If your objective is to leave you might also consider asking ACAS to negotiate an exit settlement with your employer under a settlement agreement/COT3. It is advisable to obtain advice from a solicitor on what might be a reasonable settlement.

You can find further information on where to go for more help here: maternityaction.org.uk/where-to-go-for-more-help-legal-clinic/

I hope that helps.

[Needaholidayplease]

Hi, I have a question about fixed term contracts (some of it is answered above).
My situation is similar to the above poster, in that my FTC runs out in October 2021 and I am due late December.

I work in an industry where FTCs are used commonly, and in lieu of making permanent staff. There is no realistic/ business reason for not ending my FTC but because of the way the (large) company is run, there are often complex reasons given as to why our FTC is not renewed: for example, people in the past have been told that they are covering people who have not worked in this part of the company for years, or in that role. So there is always a 'reason' to end the FTC if you see what I mean- so I'm worried that mine won't be extended because 'the person I'm covering for is back from maternity leave' or 'the person I'm covering for is coming back to this role' (eg the person your covering for changes seemingly at whim!)
If this is the case, how would I prove that I am being let go because I'm being discriminated against?

There are several others in the same FTC role as me, but I'm worried that when push comes to shove I'll be told someone is coming back into their and I should have always known. Even if someone IS coming back into 'my' role, would there still be an issue, based on the fact that I've never been covering for just one person, and that this seems to change all the time? If there is a job loss, should I have to compete with the other people on FTCs in my role?

Also I should add, my contract has so far been extended over a period of 3 years continuously (again, being told that I'm covering for various different staff who never return). Thank you.

[JTA01]

My husband is entitled to 6 months fully paid paternity leave which we would like him to take. However, I do not want to give up any of my leave. I am only entitled to statutory maternity pay and would happily give up 6 months of this so my husband can take the time off but I would like to still have 12 months off work. Is this possible?

[Needaholidayplease]

@Needaholidayplease

Hi, I have a question about fixed term contracts (some of it is answered above).
My situation is similar to the above poster, in that my FTC runs out in October 2021 and I am due late December.

I work in an industry where FTCs are used commonly, and in lieu of making permanent staff. There is no realistic/ business reason for not ending my FTC but because of the way the (large) company is run, there are often complex reasons given as to why our FTC is not renewed: for example, people in the past have been told that they are covering people who have not worked in this part of the company for years, or in that role. So there is always a 'reason' to end the FTC if you see what I mean- so I'm worried that mine won't be extended because 'the person I'm covering for is back from maternity leave' or 'the person I'm covering for is coming back to this role' (eg the person your covering for changes seemingly at whim!)
If this is the case, how would I prove that I am being let go because I'm being discriminated against?

There are several others in the same FTC role as me, but I'm worried that when push comes to shove I'll be told someone is coming back into their and I should have always known. Even if someone IS coming back into 'my' role, would there still be an issue, based on the fact that I've never been covering for just one person, and that this seems to change all the time? If there is a job loss, should I have to compete with the other people on FTCs in my role?

Also I should add, my contract has so far been extended over a period of 3 years continuously (again, being told that I'm covering for various different staff who never return). Thank you.

Sorry that should have said there is no reason why the contract shouldn't be renewed.

[MaternityActionfreeadvice]

@Yvaine24

Hi,

I came back from maternity leave and handed in my notice.

I am being asked to repay all my Enhanced Maternity Pay. It does say this in the staff handbook.

I don’t know if they have made everyone who has left in my position pay back their EMP. Is there any requirement to disclose if there are others that haven’t?

I also asked to go down to a four day week until I left and offered to use holidays but the response was that there was no business case for this.

Is there any further steps I could take?

Dear Yvaine34


Thank you very much for your questions. I will answer each in turn.

Repayment of Enhanced Maternity Pay


If the Staff Handbook states that you would be required to repay enhanced maternity pay if you hand in your notice within a certain period following maternity leave, then unfortunately there is unlikely to be very much that can be done. You are not required to repay the SMP element of 6 weeks at 90% of your average earnings and 33 weeks at £151.97 per week. You can ask to repay in small installments based on your income and outgoings.

If everyone who has left in your position has not been asked to pay back their enhanced maternity pay, there is no requirement for the employer to disclose this information. There may be emails between individuals in the company relating to you, and any repayment in the context of what they have done with other people, you could consider making a subject access request.

If you think that discretion has been exercised in the past you could try writing to your employer setting out the reasons why you have been unable to return to work and asking them to consider waiving all or part of the repayment (particularly if you are returning to work for a long notice period for instance), however, please bear in mind that they may refuse in line with the policy.

Request for a 4 day week

In terms of going down to a four day week until you leave and using your annual leave, I suggest referring to your annual leave policy and the circumstances in which annual leave can be refused. It is unusual for an employer to unreasonably refuse any annual leave requests, however there may be certain requirements for you to request annual leave in a certain period in advance. Any accrued annual leave that has not been taken by the end of your notice period will be owed to you or can be used to offset the overpayment of occupational maternity pay. Also note that you can take sick leave during your notice period if you need to and following your employer's normal sickness reporting procedures.

In terms of going down to a four day week, this would be a flexible work request and you should also refer to any policy in your staff handbook that may be applicable to make this. To request changes to your days, hours or place of work you would have to set out the reasons why you need this and your employer would need have to be a justifiable business reason as to why it was rejected, and not a discriminatory reason (e.g. because you are a mother). If you believe that other people have had holiday approved or requests for flexible work approved and they are not mothers then this could be a ground for a direct and/or indirect sex discrimination complaint.

Your employer must:

· look at your request fairly, following the Acas Code of Practice on flexible working requests

· make a decision within a maximum of 3 months

It may well be that your employer has not yet treated your request to work 4 days a week as a formal flexible work request so the above may be a process that is applicable to you. You can find more information on requesting flexible work on Maternity Action's website: maternityaction.org.uk/advice/child-friendly-working-hours/

As you are a parent, you can also take parental leave to look after your child and time off for dependents in an emergency. I would suggest that you check your workplace’s policy.

I hope that helps.

[JoJoPins]

I have been working on a huge opportunity at work for around 15 months. Its in the final stages of being agreed, expecting to come to fruition in September. According to our set incentive plan, this particular opportunity is estimated to be worth a £10k bonus alone.
I have been told that because I will be on maternity leave when this opportunity closes, I am not entitled to any form of bonuses from our incentive plan. This is in an email from HR but not stated in the current handbook.
However, a new handbook has been sent out recently (after I questioned this) where this IS stated and I have refused to sign it for that very reason. I have now apparently been "written up" for not signing and agreeing to this new policy.
Does this sound fair to you?
I started A/L on the 7th June for 2 weeks then my maternity kicks in, unless I have the baby beforehand.
Thanks!

[madamovaries]

Thank you so much for doing this; am really impressed with both MN and Maternity Action.

Unfortunately, like a lot of women I think I have been poorly treated while on mat leave, but I should add that I am pretty lucky generally with my job.

My department was incredibly male-skewed when I joined the company three years ago, though it has suddenly got a lot better since we have new bosses of the company. But no one had taken maternity leave in years - I mean, I think we're talking about a decade, possibly more - and I think this is why the company has been hopeless.

The way I was treated while pregnant wasn't great - eg I was made to work on my phone while at one of my prenatal scans (I did all the rest of the scans on my days off), for example, and I had a bunch of male colleagues using my pregnancy to push me off work that was mine and prevent me from being fairly credited for it.

I still managed to do a good job, and I landed two massive contracts for the company. I also got a new role last June, but didn't ask for a pay rise as the company knew I was pregnant. I went on mat leave in January.

I am ineligible for a bonus for this financial year, despite working most of it, because I am viewed as not there. But I decided to be brave and ask for a pay rise - to be honest, I think I would have had one already were I male (male colleagues junior to me earn more; one also got a pay rise for moving between equivalent roles without proving himself in any way).

I have since been told - because I won't have an annual appraisal due to being on mat leave - that I am also ineligible to be considered for a pay rise.

I know most people wouldn't ask for a pay rise while on mat leave, but I am on statutory mat pay and I can't even come close to covering my mortgage. And I am going to struggle if I go back to work to pay for childcare on my current salary.

I have been headhunted for another job, but I like the work I do at the current company more. Is it normal practice that you can't be considered for a pay rise while on mat leave?

Thank you very much

[HighlandMam1]

Hi!

I work as a social care worker and my hours are long. I would normally start at 8am and finish the following morning at 9am. When on the sleepover I'm responsible for residents as there is no waking night in place. I'm just wondering what my rights are when I return to my role next month. My baby still breastfeeds every two hours during the night and during KIT days I'm currently popping out to the car park to feed my baby. This wouldn't be possible during the night as the alarms would go off every time I'd go out to the car park and I also think it's a risk my partner driving to me when he is tired. My sleepovers are not contracted but they are expected to be done as part of my roll. My boss has said i will have to think about my feeding arrangements to ensure I'm available for a sleepover or I personally have to find someone else to work them. I don't believe my remit is rotas least of all while on maternity leave! I don't want to stop breastfeeding and feel this may force it or leave my little one at home distressed which the thought is already filling me with anxiety! Any advice or help appreciated!

[Jemma5321]

Hi,
I’m due to give birth in early July. I have 35 days holiday plus bank holidays(April to March) I usually only have 25 But carried over 10days due to covid. My employer has said that I cannot take it over to the next holiday year and must use it this holiday period, is this right? Would it be worth splitting up my maternity leave with holiday then parental leave?

Thank you

[MaternityActionfreeadvice]

@Needaholidayplease

Hi, I have a question about fixed term contracts (some of it is answered above).
My situation is similar to the above poster, in that my FTC runs out in October 2021 and I am due late December.

I work in an industry where FTCs are used commonly, and in lieu of making permanent staff. There is no realistic/ business reason for not ending my FTC but because of the way the (large) company is run, there are often complex reasons given as to why our FTC is not renewed: for example, people in the past have been told that they are covering people who have not worked in this part of the company for years, or in that role. So there is always a 'reason' to end the FTC if you see what I mean- so I'm worried that mine won't be extended because 'the person I'm covering for is back from maternity leave' or 'the person I'm covering for is coming back to this role' (eg the person your covering for changes seemingly at whim!)
If this is the case, how would I prove that I am being let go because I'm being discriminated against?

There are several others in the same FTC role as me, but I'm worried that when push comes to shove I'll be told someone is coming back into their and I should have always known. Even if someone IS coming back into 'my' role, would there still be an issue, based on the fact that I've never been covering for just one person, and that this seems to change all the time? If there is a job loss, should I have to compete with the other people on FTCs in my role?

Also I should add, my contract has so far been extended over a period of 3 years continuously (again, being told that I'm covering for various different staff who never return). Thank you.

Dear Needaholidayplease

If a fixed term contract expires and is not renewed, this is a regarded as a “dismissal” in law. In order for an employer to avoid a claim of unfair dismissal (which an employee can bring if they have two years continuous service, the employer must be able to show that the reason for the dismissal falls within one of the five potentially fair reasons for dismissal. These are conduct, capability, redundancy, illegality or “some other substantial reason”. However, it is not enough for an employer to show that they have a fair reason for dismissing the employee – they also have to follow a fair procedure. So, in the case of a redundancy, the employer must first carry out a fair selection process if there is more than one employee carrying out the same type of role (as in your case). Once the employer has made their selection, they must then follow a fair consultation process which includes considering whether there are any suitable alternative roles for the employee.

The two most common reasons used by employers for the non-renewal of a fixed term are redundancy and “some other substantial reason”. The latter reason usually is used where the employee has been recruited specifically to provide cover for someone on maternity leave/other statutory leave or to cover for someone who is on sabbatical or long term sick leave and that employee, whose role they have been covering, returns. The reason for dismissal therefore is the return of the employee whose role was being temporarily covered – it is not a redundancy as the role still exists. Instead the reason falls under the category of “some other substantial reason” . In that situation, the employer should still follow a fair procedure, particularly if the employee has been there for 2 years, and as part of that procedure, they should consider whether there are any suitable alternative roles available that could be offered to the employee.

If, however, the reason for dismissal is related to a “protected characteristic”, this is unlawful and, regardless of the length of service, the employee will potentially have a claim for discrimination. Pregnancy is, of course, a protected characteristics and if the reason for the non renewal of a fixed term contract is pregnancy or the fact that the employee is going on maternity leave, the employee would have potential claims for both automatic unfair dismissal and discrimination.

In relation to your situation, it seems to me that your employer would be unable to rely on redundancy as a potentially fair reason for not renewing your fixed term contract. As you say, the work is still continuing so there is no redundancy situation. Even if there was a reduction in the work, there are a number of other employees carrying out the same type of work as you, so your employer would have to carry out a selection process before putting anyone at risk of redundancy. This would involve “pooling” together all the employees who carry out the work that has reduced and then using objective selection criteria to decide which employees in the pool should be put at risk. It goes without saying that pregnancy should not be used as a criteria for selecting anyone for redundancy nor should the fact that the employee is going to be absent on maternity leave be a reason for selecting her for redundancy. Selection on such discriminatory grounds would be unlawful and, again, give rise to a claim for discrimination.

I also do not believe that your employer will be able to rely on “some other substantial reason” in order to justify the non-renewal of your fixed term contract. It would be incredibly disingenuous of your employer to argue that the reason your fixed term contract is not renewed is because you were covering all along for someone you didn’t even know you were covering for. The fact that you have been there for 3 years, alone, would undermine any argument that you were covering for anyone.

I note what you say about the difficulty of proving that you had been discriminated against if your employer were to dismiss you at the end of your current fixed term contract. Rarely, however, will an employee have evidence of direct discrimination and the Tribunal is alert to this and to the insidious nature of discrimination. If there is no reason why your contract should not be extended again (as you say, the work is ongoing and your contract has been extended twice already) and the only thing that has changed is that you have told your employer you are pregnant, I believe that these are facts from which a Tribunal could conclude that your employer has committed an act of discrimination. It would then fall to your employer to prove, on the balance of probabilities, that the treatment was not on the grounds of your pregnancy – in other words, that there was another explanation for the treatment that had nothing to do with your pregnancy - and it is likely they will struggle to do this.


I would hope, in an organisation the size of your employer which has a reputation to protect as well, that they would not do something as crass and obvious as not renewing your fixed term contract while you were pregnant and giving you some opaque/convoluted reason for doing this like telling you it is because you have been covering for someone else. Such a decision would be incredibly risky from their point of view. Nonetheless, if they do decide to terminate your contract before your maternity leave commences, you should raise a formal grievance and seek legal advice as soon as possible to give you time to try and reach a resolution with your employer and to ensure that you are not having to make difficult decisions close to your due date. It is important to note that there are very strict deadlines in the Employment Tribunal and if a claim is not commenced within 3 months of the date of dismissal or the act of discrimination, it can be fatal to any potential claim.

One final, important, thing you should be aware of is that, under the Fixed-term Employees Regulations, employees who have been continuously employed for four years or more on a series of successive fixed-term contracts are automatically deemed to be permanent employees (that is, employed on an indefinite contract) unless the continued use of a fixed-term contract can be objectively justified. I am not clear when you will reach the four year point, but if your contract is renewed at the four year point then – unless your employer can justify continuing to use a fixed term contract (which seems highly unlikely) - you will automatically become a permanent employee and will hopefully no longer have to be concerned about your contract not being renewed on a whim.

I wish you all the very best,

[MaternityActionfreeadvice]

@ArchbishopOfBanterbury

Because of covid I have a lot of unused time off this year. I'm due in September.

I've been told I can't carry over my holiday after mat leave, so need to use it up before I go. I've also been told the role of my mat leave cover can't be extended beyond a year - so if I don't want to waste my holiday, I can't do a full handover (or if I do, the cover role would start early, and I'd have to go back earlier, before my baby was a year old.)

Does that seem right?

Dear ArchbishopOfBanterbury,

Thank you for your query.

I take it that your maternity leave will span over two leave years? That being the case, this does not seem right. It looks like there are two issues here:

Your holidays: you cannot take holiday whilst on maternity leave. So any statutory (i.e. the first 5.6 weeks/28 days) holiday you accrue during your maternity leave should be carried forward to the following leave year for you to use then. The position is not quite so clear cut in relation to use of holiday before you go on maternity leave. However, if it is not possible for you to use up your current years’ annual leave entitlement before you start maternity leave, European case law indicates that you should be permitted to carry this forward. So if your impending maternity leave is the reason you will not be able to take your leave before the end of the current leave year, you should not be in a ‘use it or lose it’ situation.

Your period of maternity leave: it is up to you (and you alone) to decide how much maternity leave you wish to take. You are entitled to take up to 52 weeks’ maternity leave; your employer cannot require you to return earlier than that simply because they do not wish to arrange cover for you during a period of annual leave. Having said that, I would flag that it is up to your employer what and how much cover to arrange, and there is no legal requirement for them to provide cover for the entire period that you are off (whether on maternity leave or holiday). However, the key point is that they cannot insist that you start/finish your maternity leave at a particular time to fit in with a specific handover period, nor can they treat you unfavourably because you are (or were) on maternity leave. If you wish to take 52 weeks’ leave, you are free to do so – you should not be subject to any detriment as a result of this choice.

It is very common for women to take accrued leave before/after maternity leave; keep talking to your employer to try and resolve this. Who did you discuss this with at your employer? Was it your line manager? If so, I would recommend that you ask for a confidential meeting with HR to discuss your concerns about your forthcoming maternity leave/annual leave and the impact upon your legal rights. If you have already spoken with HR, is it possible to escalate your concerns and speak with someone more senior? Hopefully by doing so, you will be able to reach agreement with your employer and find a mutually acceptable way forward. Options to consider may be to agree with your employer that you will end your maternity leave early and take your paid annual leave immediately afterwards (so you will still be off for the same amount of time, but more of it will be paid annual leave rather than maternity leave). Another option may be to use some ‘Keeping in touch’ days to engage with your maternity cover. Only if you feel comfortable with these options however – you cannot be required to do this.

If you are unable to resolve it by talking to your employer informally, you could raise a formal written grievance. Generally this should be a last resort as it is not always the best way to find constructive solutions – especially if you have already discussed this with the manager and HR involved. However, if all else has failed, it may be the only way to make your employer take your concerns seriously.

I hope that helps.

[MaternityActionfreeadvice]

@HighlandMam1

Hi!

I work as a social care worker and my hours are long. I would normally start at 8am and finish the following morning at 9am. When on the sleepover I'm responsible for residents as there is no waking night in place. I'm just wondering what my rights are when I return to my role next month. My baby still breastfeeds every two hours during the night and during KIT days I'm currently popping out to the car park to feed my baby. This wouldn't be possible during the night as the alarms would go off every time I'd go out to the car park and I also think it's a risk my partner driving to me when he is tired. My sleepovers are not contracted but they are expected to be done as part of my roll. My boss has said i will have to think about my feeding arrangements to ensure I'm available for a sleepover or I personally have to find someone else to work them. I don't believe my remit is rotas least of all while on maternity leave! I don't want to stop breastfeeding and feel this may force it or leave my little one at home distressed which the thought is already filling me with anxiety! Any advice or help appreciated!

Dear HighlandMam1

Thank you for your query. Unfortunately there is no legal right to breastfeeding breaks, however, you may have some protection under health and safety and sex discrimination laws.

Your employer must conduct a risk assessment and make reasonable adjustments to remove any health and safety risks if you notify them in writing that you are breastfeeding.

In terms of the lack of flexibility from your employer regarding the sleepover requirement of your role and the onus being on you to source a replacement in the event that you cannot do the sleepovers, this could be potentially discriminatory as the requirement to work sleepovers places you at a substantial disadvantage as a breastfeeding woman. If your employer is not granting you the flexibility you need to accommodate breastfeeding, this could be indirect sex discrimination if your employer is unable to justify it.

I would advise making a formal flexible working request for your employer to consider asking not to work sleepovers due to breastfeeding. There may be some guidance on the process that your employer requires you to follow in the staff handbook. Your employer must consider your request reasonably and can only refuse a request if there are reasonable business grounds for doing so. However, you should note that a flexible work would normally result in a permanent change to your days, hours or place of work so you will need to discuss with your employer whether they would be willing to consider this on a temporary or trial basis.

If this is not successful, there is also the option of raising a grievance in the first instance if your employer has shown no willingness to accommodate your needs and you feel that they are discriminatory, however, I would use a grievance as a last resort as it is important to try to maintain a good working relationship wherever possible and explore practical solutions to enable you to combine breastfeeding and work.

There is information on making a flexible work request on the Maternity Action website: maternityaction.org.uk/advice/child-friendly-working-hours/
You can also find information about breastfeeding on return to work: maternityaction.org.uk/advice/continuing-to-breastfeed-when-you-return-to-work/

I hope this helps.

[MaternityActionfreeadvice]

@StarskyH

Hello

I am hoping you can advise me. Whilst on maternity leave a secondment came up at my work which was for the role above mine, so a promotion. Had i been in work i would have definitely been expected to apply as they rarely come up and i have been working towards it for a number of years.

I wasn’t told about the secondment whilst on maternity leave and found out about it later from a colleague, at this point the position had been filled.

I was disappointed but the fixed term of the secondment was due to end when i returned to work so i thought if the role was made permanent i would have a chance to apply for it then.

However the position was not readvertised at the end of the fixed term and the person who did the secondment was interviewed for the post and was made permanent

My questions are:

Should I have been told about the secondment/promotion opportunity when on maternity leave?

Should they have given me an opportunity to apply for it on my return to work when the role was being made permanent?

Any help gratefully received, thank you

Dear StarskyH

The short answer to your first question is ‘yes’. You have the right not to be treated unfavourably because you are on maternity leave. Employers must therefore ensure that women on maternity leave are informed of any jobs that become available, including opportunities for promotion and transfer, and must enable them to apply. Failure to do so may amount to discrimination because of pregnancy and maternity.

The next question is therefore what you do about it. In the first instance, I would recommend that you write to your employer and express your disappointment at not being either (i) notified about the secondment opportunity or (ii) given the opportunity to apply for the position upon your return from maternity leave (before the person in post was permanently appointed). Ask them to explain why this happened.

Given that a colleague has been appointed in to the role, the reality is that it is unlikely your employer will be prepared to unwind this process and give you an opportunity to be considered now. With that in mind, what would a good outcome look like for you?

It does sound as if you would have a potential legal claim against your employer if you wished to go down that route. You can contact ACAS to register for early conciliation to see whether they can resolve the dispute and finally bring an employment tribunal claim if you cannot resolve matters. Please be aware that there are strict time limits which operate for bringing claims to the employment tribunal. Generally speaking, you have three months less a day from the date of what you are complaining about or the last in the series of things you are complaining about to contact ACAS if you want to go to the employment tribunal afterwards (or think that you might want to do so). I would recommend that you do this sooner rather than later i.e. you do not need to wait for a response from your employer if you write to them as suggested above.

For completeness – and to answer your second question - there is no specific legal requirement that a role is advertised internally. However, it is good practice for employers to do so. If the reason you were unaware of the role or not afforded the opportunity to apply is because you were on maternity leave, the same issues arise as with your first question and the recommendation would be the same.

We hope that this has helped.

[MaternityActionfreeadvice]

@JTA01

My husband is entitled to 6 months fully paid paternity leave which we would like him to take. However, I do not want to give up any of my leave. I am only entitled to statutory maternity pay and would happily give up 6 months of this so my husband can take the time off but I would like to still have 12 months off work. Is this possible?

Dear JTA01

Thank you for your query. I understand you want to know whether or not you will ‘lose’ any of your 12 months’ maternity leave entitlement in the event that your partner takes 6 months of paid paternity leave under his employer’s enhanced scheme.

I will firstly set out some basic information about the statutory framework for taking leave after the birth of a child. Paid statutory paternity leave is ordinarily for a period of 2 weeks. If a partner then wants to share time off with the mother this would usually be by way of shared parental leave (SPL). Couples can share up to 50 weeks of leave and up to 37 weeks of statutory SPL pay between them (minus any pay/time off the mother has already taken by way of maternity leave). Note that the mother must take a minimum of 2 weeks of maternity leave for health and safety reasons (hence there being 50 rather than 52 weeks of SPL available to share between the couple). The 50 weeks can be taken in blocks separated by periods of work, or all in one go. The couple can be off work on SPL simultaneously or choose to alternate when they are off on SPL. Any period of time one partner takes off under the SPL (or maternity leave) scheme reduces the couple’s overall entitlement of 50 weeks of SPL off.

This is the basic statutory framework and what you will need to do is explore how your husband’s company’s enhanced paternity leave/pay scheme follows/interplays with the statutory framework for SPL. Your partner will need to check his eligibility for his employer’s enhanced paternity scheme and whether it is contingent on, for example, your maternity leave having ended and/or you ‘sharing’ any of your maternity leave with him (by way of e.g. shared parental leave). In order to do this I suggest he requests a copy of his employer’s family friendly policies (such as paternity and SPL) or else locates them on the staff intranet or in the staff handbook, and reads through them, particularly the section on eligibility. He should then raise a query with his manager and/or the HR team at his workplace (if there is one) to check his understanding of the policy is correct. Unfortunately the SPL scheme did not create any new, independent rights for paid time off for fathers/partners, it only allowed mothers to transfer some of their leave/pay to their partner.

If the company policy allows your partner to be on enhanced paternity leave without it ‘eating’ into your own maternity/SPL entitlement, then great. Please note, however, if you end up in a position where you are both taking time off to care for your child, you should ensure that any enhanced paternity pay that your partner is receiving does not incorporate any Statutory Shared Parental Pay, if you yourself are already claiming SMP (or vice versa). This would lead to double recovery of your entitlement as a couple to some form of statutory shared parental or maternity pay. It would be worth you both raising this issue with your respective workplaces so that they can ask payroll to calculate the figures correctly, so that you don’t inadvertently get into trouble (e.g. with HMRC) for claiming the statutory pay twice.

If your partner’s enhanced paternity/parental leave policy does require you to give up some of your maternity leave/SPL in order for him to be eligible for the scheme, you will need to consider if you are willing to do this. You do not have a legal right to extend your maternity leave/SPL beyond the maximum number of weeks that the statutory framework allows, but you can speak to your workplace about different options for extending your time off before you return to work e.g. taking a period of unpaid leave, or using accrued annual leave. Note that you will continue to accrue annual leave during any period of maternity or SPL you personally take (at the same rate as you would if you were in work), and many parents choose to add this annual leave onto the end of their maternity leave/SPL as extra time off, but on full pay.

Another option to explore is parental leave. Each parent (provided they have worked for their employer for at least 1 year) has the statutory right to 18 weeks of unpaid time off work to look after their child, which can be taken any time up to their 18th birthday. This time off will be unpaid unless your company policy says otherwise.

If you take parental leave, it should be in blocks of a week at a time, and a maximum of 4 weeks in any particular year. If you want to take any parental leave you must ask your employer 21 days in advance of the date you want the time off to start. Your employer can postpone your parental leave request if it is going to be disruptive to work (e.g. too many other staff on leave at the same time that a large project deadline is due), but only by up to 6 months after the date you originally asked for. If your employer does decide to postpone your parental leave, they must write to you within 7 days of your request to tell you why the leave is being postponed and to offer other suitable dates within the 6 month period following the date you originally wanted the leave to start on.

If you decide to request a period of parental leave to extend your time off after the birth of your child, it is advisable to think about how much you would like to take off at this time (a maximum of 4 weeks per year) and whether you might want to retain any of your entitlement for future use e.g. to look after your child during school settles or school holidays, or when they are off school sick (although remember, each parent can take up to 18 weeks of parental leave for each child, so that is 36 weeks potentially available to you as a couple).

The ACAS and Maternity Action websites have specific sections on family-friendly leave if you would like to read around this topic in more detail:

www.acas.org.uk/maternity-paternity-and-adoption-leave-and-pay

maternityaction.org.uk/advice/shared-parental-leave-and-pay/