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What is the law on having mat leaves 'back to back' Dp owns a small business and it is causing real problems.....

(14 Posts)
stilltryingtosell Thu 27-Aug-09 11:18:11

Basically DP runs a small business, about 50 staff. His main Admin support went on Mat leave at the beginning of last year, no problem there. Just before she was due to return, she informed the business that she was expecting again (was in fact heavily preggers) and would be going into a second mat leave. The baby is now about 4 months old. She has not given any indication of her intentions. the problem is two fold

Firstly, the loveley person who is covering her has ben on a temp contract for over a year now, she is wanting to know whether her job will be made permanent. Even if The lady on mat leave does return, the temp has now accrued a lot more 'rights' with regards termination of contract which the business cannot really afford to cover.

Secondly, the lady who is off has told a third party that she is hoping to have baby number three before she would need to come back!!!

My basic question is, how log does the business still have a legal obligation to continue her contract of employment, if she has number three then she will have been absent for three years!! Is there any way of terminating her employment?

LackaDAISYcal Thu 27-Aug-09 11:25:15

I'm no expert, but I don't think that there is a lot that you CAN do. she is legally entitled to have maternity leave and there is, as yet wink, no limit on the number of children you can have.

Terminating her employment because of maternity issues, well, you shouldn't even be considering that as it's illegal as far as I know.

Whilst she is on maternity leave it is taken as continuous employment so you have the same obligation to her as any other employee.

I realise that as a small business you are suffering as a result of this but there is little that you can do; you certainly can't make her redundant over these issues.

Direct.gov has information on maternity rights with links to other sites.

If she has taken additional maternity leave though, although you have to keep a job open, it doesn't necessarily have to be HER job. This may mean you can make the temp permanent and then offer her something else when she returns.

Stigaloid Thu 27-Aug-09 11:49:49

I didn't think she would be entitled to maternity pay after one year as this would run out, she has not returned to work and therefore has had no employment wages in last year to qualify. She should certainly only be on satutory which your DH can claim back in full. Sounds like she is really playing the system and women like her make me so cross!

Stigaloid Thu 27-Aug-09 11:51:39

ah - i did not know that LackaD.

I work for a sole trader and when i go on mat leave i get sat mat pay, which he can claim back in full - speak to your Dh about her mat package and what he can claim back.

Stigaloid Thu 27-Aug-09 11:52:01

er - stat mat pay - not sat mat!

LackaDAISYcal Thu 27-Aug-09 11:55:47

she would be entitled to statutory pay on the minimum amount (ie no 90% for six weeks) only after the first leave unless the company has a generous maternity pay package, although most small businesses only offer statutory.

not sure about playing the system though hmm. She is entitled to maternity leave and pay, it's a legal requirement and some might argue that it's better for the company for her to do it this way than to come back, then go off again, come back, go off again...

I had one maternity leave and got pregnant again. due to health issues there was no way I could work and be pregnant at the same time so I was signed off between leaves. I would hate to think that I was being accused of "playing the system"

flowerybeanbag Thu 27-Aug-09 11:56:16

I can't give you free advice as you (or your DP) are a business that I would normally charge, but I must just say please don't terminate her employment. There are ways of managing the situation as best you can, but don't sack her.

ruddynorah Thu 27-Aug-09 11:59:28

if i were your dh i'd just make the temp permananent, there are good business reasons for doing this. then when she decides to come back, either after the second or third child you look at what jobs would suit. she may want a new working pattern anyway which may not fit with her old role. she just has to offered a role on an equal footing, so same pay and terms basically. you may even find she won't want to come back at all...seeings as she is financially well off enough to be off for 3 years.

stilltryingtosell Thu 27-Aug-09 12:25:20

Thanks for all the messages. Would just like to say that Dp does NOT have a problem with staff having maternity leave, it is how to manage the effects on the business. He can see it from both sides as we have a young child and I benefitted from maternity leave and pay.

However, the business is already feeling the full effects of the recession and has made 10% of the workforce redundant, at times like these planning staffing becomes critical, hence I was hoping that there would be a way to reach a solution with regards the temp staff who is also entitled to know what the future holds.

I am afraid that some women (the minority) DO play the system, and planning three kids one after another whilst taking advantage of the employer having to keep a job 'open' to my mind falls into this category. If you are planning a large family and do not plan to even return short term between them then I do feel you should do the decent thing and leave.

There is no other circumstance where you could be absent from your job for three years and expect to walk back in on the same terms and conditions!!

ruddynorah Thu 27-Aug-09 12:32:51

he doesn't have to keep that exact job open for the 3 years. he just has to have something on an equal footing to offer her in 3 years time. lots of changes will happen in those 3 years, others will leave, the business may change, he may need more staff, new roles may be created, lots of things.

the maternity replacement should be temp unless there are business reasons that mean it needs to be a permananent replacement. back to back maternity leave cover would, i would think, be one of them.

Kafka Sat 29-Aug-09 21:35:49

Women with young children face great difficulty in finding employment. It can only be a good thing that employers have to keep a woman on maternity leave job open.

Statutory Maternity Pay can usually be claimed back in full by the employer.

Many women have more than one child and take more than one period of maternity leave. How is it more disruptive to take them back to back, rather than back at work for a year and then off again - swings and roundabouts?

IME some employers are using the recession as an excuse to discriminate against women on the grounds of pregnancy and/or maternity leave.

Try not to marginalise this woman. How about asking her if she wants to come in for a keeping in touch day? try to see her as a valued member of staff. The childbearing years are brief when looked at in the context of an entire career. The right approach should help preserve a good relationship between employer and employee. Savvy employers do all they can to retain their female staff who have had a baby. These women often have valued experience and talent. Treating staff well raises morale for the entire workforce.

If the 'temp' has to be terminated because of the employee's return this is likely to be a fair dismissal.

stilltryingtosell Fri 04-Sep-09 21:26:08

Hi Kafka
Only just picked up your response!
My partner is not anti women taking maternity leave, but equally people are employed to actually do a job, that is why they get paid!! Most businesses can manage for 6 or 12 months whilst a woman has mat leave, but when that runs into 2 to 3 years then the level of difficulty and uncertainty does rise considerably. The problem with the extended absense is purely that the 'temp' employed to cover her now effectivley in not classed as a temp in the eyes of employment law, hence Dp has had to take her on 'properly', this is against the backdrop of other very hard pressed staff being made redundant.
I do appreciate that women do face many challenges when trying to work whilst raise children, as I am one of them, but ultimately we should not expect to have it all ways, all to our own advantage, surely?
Incidentally she was asked to come in for a keep in touch day but declined lol!!

Kafka Sat 05-Sep-09 01:01:49

sts thanks for your reply. I appreciate that the position, particularly for a small business is difficult.

I did not intend to imply your partner or you are anti women.

Currently the law protects women in relation to pregnancy and maternity, because otherwise following pregnancy women would be extremely vulnerable to unemployment.

Before the 1975 Sex Discrimination Act women were often dismissed on becoming pregnant and often expected to resign on marriage.

How many households, even if they wanted to, can survive on one wage?

In the context of an entire career a few years out of the workplace are short.

an employee who is covering for a woman on maternity leave can probably be fairly dismissed upon her[woman on mat leave] return. Granted it is disruptive for the business and for the employee who is dismissed, but provided the employee is aware she is a maternity locum it is arguable, that even if she has over one years service, her dismissal would be regarded as fair

I don't think it is women having it both ways. Personally, I would like to see more equal parental rights, with partners being able to take an equivalent ammount of paid leave, some of it linked to earnings. In this way both parents would have the right to time off and crucially could afford to take the time off in order to spend time with their children and women would be less likely to be perceived as the 'problem' for employers.

Many women still face astonishing discrimination as a result of the consequences of pregnancy and childbirth. These are a handful of examples that I am aware of through friends/acquaitances: a senior doctor who was asked at interview 'you've completed your family haven't you?' she had one child
an accountant who was asked an an interview, are you marired?, how many children? and are you planning any more?
a merchant banker who was made redundant soon after her marriage, the 'word' was her boss saw her as a maternity 'risk'

There are strong public policy reasons employment rights that protect parents of young children.

sorry not very well expressed, been a long day!

LoveBeingAMummy Sun 06-Sep-09 07:13:08

I think you should take some formal advice, maybe even flowery, Personally i thought you had to have returned to work for a small period to accure more amt leave but then I'm no expert grin

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