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Rights during maternity leave and on return to work FAQs
Maternity leave protects your right to be able to return to the same job following time off after the birth of your baby. You are entitled to your normal rights during maternity leave (apart from pay) and there are specific protections in redundancy situations.
Women who take maternity leave still experience discrimination, despite the legal protections. The following information addresses some FAQs about your legal rights when you return to work.
We have put together a brief section on sources of legal advice (both free and paid for) at the bottom of the following Q&A. Very short time limits can apply to Employment Tribunal claims. If you need to bring a claim against your employer, you should take specific legal advice as soon as possible.
Restructuring while on maternity leave
Women on maternity leave sometimes feel forgotten when their employer has a restructure. If you aren't in the office, you might not be consulted about what’s going on and won't have access to information about new jobs that might be available. It’s important to know your rights in this area.
What are my rights about receiving information from my employer during maternity leave?
Your employer is not allowed to treat you less favourably because you are on maternity leave. 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.
Ideally, you want to obtain the information, rather than have to bring a claim against your employer. The first step is to ask for the information (preferably in writing), explaining that you don't want to be placed at a disadvantage by 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’s 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 and 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.
Am I protected from redundancy on maternity leave?
There are three basic ways that the law tries to protect women on maternity leave in this situation.
1. You’re entitled to be kept informed of what is going on and to be consulted
Your employer must provide you with as much information and opportunity to comment about the potential redundancies as your colleagues. 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 up to date 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.
2. You cannot be treated less favourably than other employees
Employers are not allowed to treat women on maternity leave less favourably than other employees. 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.
3. Your employer must offer you a suitable alternative vacancy
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 than colleagues who are not on maternity leave.
Am I 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) for the remaining 39 week period.
If you have contractual maternity pay as well, that is likely to end when your employment ends, but this may depend on the terms of your employer's scheme or could be negotiated as part of the redundancy package.
If you are made redundant before your maternity leave, you will still be entitled to SMP if you are employed up to the 15th week before your expected week of childbirth (even if it’s only for one day of that week). Your employer must pay your SMP for 39 weeks once you have qualified for it. If you are being made redundant your employer may choose to pay your SMP in a lump sum.
If your employer dismissed you in order to avoid paying SMP before the 15th week, you would still be entitled to it and you should contact HMRC Statutory Disputes Team on 0300 056 0630 and ask for a formal decision..
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 strongest position to get what you are looking for. Bear in mind 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 request flexible working?
Make sure your request complies with government legislation on flexible working. 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 the change should become effective.
- You must explain what effect, if any, you think making the change would have on the employer and how, in your opinion, any such effect might be dealt with. Provide a reasonable amount of detail here, as 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 GOV.uk.
Does my employer have to say yes to flexible working?
No. If you make your application in the right way, your employer is under an obligation to consider it reasonably, but they are under no obligation to agree to it. A flexible working request can only be rejected on the following business grounds:
- 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 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.
Your employer must consider your request reasonably and must give you a final decision within three months of your request so you do need to allow plenty of time. If your employer rejects your request, you have a right to appeal the refusal. You should write to your employer saying that you would like to appeal and set out your reasons for appealing. Think carefully about what else you could propose to make your request work e.g. a trial period.
You are entitled to a written decision following the appeal. 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.
What can I do if my employer says no to flexible working?
If 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, or
- Your employer's decision was based on incorrect facts
You can get a maximum of eight weeks’ pay, capped at £508 per week, for complaints about the way your employer handled your request.
Sex discrimination at work
If you find that childcare commitments make it difficult for you to work the hours that your employer requires, it may 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 for indirect sex discrimination because your employer has refused your request, 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 (less one day) 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 a roundup of sources of advice here.
Do I have to pay back maternity pay if I don't return to work?
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 (and anyway, how would they know?).
Unfortunately this doesn't apply to contractual maternity pay. You contract is likely to specify a period of time that you need to return for in order to avoid the money being clawed back.
If your contract allows for clawback, there is nothing unlawful about your employer using 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.
What if I cannot return to work?
If you cannot return to work through no fault of your own (e.g. if you are made redundant or your personal circumstances in a way that makes it impossible for you to return) then your contract may allow you not to pay the money back.
Even if your contract states 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. You can argue that, had both parties envisaged this situation when they entered into the contract, they would have agreed that the repayment provisions would not apply.
If 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.
Employment Tribunal claim time limits
The point cannot be emphasised enough: strict time limits apply to Employment Tribunal claims. You will need specific advice in respect to your claim, but generally you need to bring your claim within three months (less one day) 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 roundup of sources of advice here.
Can my employer make me redundant 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. However, most employers are now aware that they are not allowed to actually say this is the reason, so 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 difficult for an employer to do this. Even if a genuine redundancy situation arises during your maternity leave, your employer is obliged to offer you any suitable alternative vacancy which is available, in preference to employees who are not on maternity leave.
You should not be expected to go for interviews or selection exercises for new posts as you could be disadvantaged if you have recently given birth or you have been out of the workplace for a long time. This protection is provided by regulation 10 of the Maternity and Parental Leave Regulations 1999.
If you turn down an offer of suitable alternative work, you will not be entitled to a redundancy payment.
“I have been told that I will be given a different job when I return to work. Can my employer do this?”
The starting point here is that if you are returning to work within the first six months you have the rights to return to the same job. If you are returning to work in the second six months of your maternity leave you still have the right to return to your old role on the same terms and conditions unless either:
- the role is redundant
- it is not “reasonably practicable” for you to return to the old job.
If your employer is not saying that the role is redundant, they can only lawfully refuse to allow you to return to your old role if it is not “reasonably practicable” for you to do so.
Your employer must be able to show why it’s not reasonably practicable for you to return to your old job, such as changes to the business over the last year. It’s not normally a good reason to say that your maternity cover is still doing your job.
It's a good idea to talk to your employer informally at first (including the HR department if there is one), providing information about your right to return to your old role. If a less formal approach does not work, you could write to your employer and you should get advice as soon as possible.
If you are considering a legal claim then you should think about taking legal advice (which you can find here).
A refusal to let you return to your old job may be constructive unfair dismissal and/or maternity discrimination.
As stated above, strict time limits apply to bringing a claim in the Employment Tribunal.
Applying for jobs when pregnant
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.
If you tell your employer about your pregnancy during an interview or probation period and you are not given the job you can bring a claim for pregnancy discrimination in an employment tribunal but you would have to show that the reason you were not appointed was because of your pregnancy.
The only legal requirement to notify your employer of your pregnancy is in the 15th week before your baby is due, which is when you have to give notice for maternity leave and pay, and your pregnancy is quite likely to be obvious by then!