Maternity - return to work

[Pieandchips83]

Hi,

just looking for a bit of advice from anybody who has gone through this particular mill before…..

Basically, I have been with the same employer for the best part of a decade.

i went on mat leave a few years ago and they accommodated my return to work part time. my maternity cover is full time in the role.

In a recent discussion with my boss, he suggested that, due to some internal changes that are going to happen, they may need to make my role full time.

i just wanted to see what my rights would be in this case. If I go back before 26 weeks, do they have to give me my old job back on the same hours or can they insist that I return full time? Could I be made redundant if I can’t do full time hours?

thanks in advance!

This is what acas says:

The right to return to work

If you've taken 26 weeks or less

The first 26 weeks of maternity leave are called 'ordinary maternity leave' under the law.

You have the right to return to the same job after ordinary maternity leave.

If you've taken more than 26 weeks

More than 26 weeks' maternity leave is called 'additional maternity leave' under the law.

If you use additional maternity leave, you still have the right to return to your job on the same terms as before you left. But if it's not possible because there have been significant changes to the organisation, you could be offered a similar job.

In this case, the job cannot be on worse terms than before. For example, the following must be the same:

-pay
-benefits
'holiday entitlement
-seniority
-where the job is

maternityaction.org.uk/advice/discrimination-during-maternity-leave-and-on-return-to-work/ also gives info

Yes but what about the same job but on less hours as the OP is asking?

She is already doing part time hours from what she has written. Her maternity cover is doing full time hours

I read it as follows:

OP worked full time and then after a previous maternity leave came back on part time hours

She is now on maternity leave and wants to know if she has the right to return to her part time hours or whether she would be forced to do full time hours

That’s exactly right.

thanks v much for the response

I really value the part time hours and losing that option is the thing I am most concerned about.

If it’s a valid restructure in the organisation, was just worried that I could be made redundant if I can’t meet the requirements of the role as they see it now.

oh the joys of being a working mum 😊

If they genuinely wish to do this, when you go back is irrelevant. They have to either give you your existing role / hours or an equivalent for you to return to. But the second you walk through the door all bets are off, and they can then restructure the role if they want. Whether they can justify insisting on it being one full time role rather than two part-time, and what that might look like, would be the test of legal fairness. Most employers looking to do something like this are savvy enough to wait until you return, because at that time your protections have gone.

Thanks.

I don’t get the feeling that they are wanting to get rid of me generally, they just either want me to return full time or else I’ll lose the role that I had and they won’t be able to find me anything else suitable with the same hours/salary.

would it be wise to return during the ‘ordinary maternity’ leave period?

appreciate the replies to this.

If the role is full time might it be an option to suggest you job share?

Yeah, I think that would certainly be worth considering. Thanks

Employers cannot make unilateral changes to your employment contract. I am 52 and part time, my employer cannot decide I am full time from next month, maternity leave doesn’t even come into it.

You also cannot be made redundant because there is more work to, redundancy happens when there is too little work not too much. So they cannot say your role is now full time, if they have more work they need to recruit.

If I were you I would stand your ground, but I wouldn’t give too much away or they might just restructure your role away, as it is they are saying they need more of your role, that is good from your perspective.

Thanks for that.

i think I’m just wondering whether if I go back earlier, during the ‘ordinary’ maternity leave period, I’d have more rights overall.

No employers cannot make unilateral changes - but they can and do have the ability to make changes and provided they follow a very simple process of "fairness" it will be legal for them to do so.

And yes, you can be made redundant because there is more work required! The employer can restructure work and roles, and provided they follow a legally fair process of consultation, and can establish a reasonable argument for why a part-time role does not meet their business requirements any longer, then yes, they can make a part-time role redundant and replace it with a full-time one.

That is not to say that they will do any of that, but it is not responsible to say that they can't do it - they could do it, it isn't hard to do, and it is not automatically legally unfair. Only a tribunal could determine whether it was fair or not, and they would do so based on a multitude of facts and not uninformed opinion on a website. We simply do not know enough facts to hazard a good guess as to what a tribunal might decide.

No, you absolutely cannot be made redundant because of a surplus of work. No way. That defies the very definition of redundancy. They need to recruit if there is more work to do.

Now of course, they could be sneaky and restructure away a role in order to recruit for a “different” role full time. But it doesn’t sound like this employer is savvy / sneaky enough to do that, they have literally admitted that they need more of the OP.

If you go back within the OML then you have the right to return to your existing job on the same terms as you had before your maternity leave, but the minute you go back your "protection" ceases. Literally the second you walk through the door. You are then subject to the same laws and risks as any other employee, and they could begin consultation to change your contract. As I said previously, that doesn't mean they will, or that they could do so lawfully - but they could, and they may be able to do it too.

It probably doesn't apply to you, but it is worth pointing out that it is a fiction that someone on maternity leave cannot be made redundant. It's hard (which is why many employers wait until someone returns to do it), but if a job genuinely no longer exists, and there is genuinely no suitable alternative (both of which can be difficult to evidence whilst someone is on maternity leave, so it's risky for the employer) the even a woman on maternity leave can be made redundant.

So, to be clear, if you return before the end of your OML then you return to your existing job on the same terms and hours. There is nothing to stop the employer then considering / consulting on possible changes - maternity leave is then spurious. Whether they can then enforce a change of terms if you don't agree will depend on many factors but broadly speaking, it would be a business case as to why this was the only option for them. You would have the chance to dispute that case; and also to be offered any suitable alternative employment that might be available. If the employer goes ahead and there is no suitable alternative they can dismiss by reason of redundancy, and it would then be up to you to take that to a tribunal if you thought what they did was legally unfair. Bear in mind that legally unfair and unfair are not the same thing - employers do lots of unfair stuff that is legally fair.

And they may do none of that. Until they make the first move it's impossible to say what they will do.

I am not going to get into an argument, but restructuring a role is, by definition, making the other role redundant. It is not always possible to recruit as an alternative, and we have insufficient information to say one way or another.

OP - if you genuinely think that this is going to become a problem, get legal advice and don't depend on anyone here - including me. Bad advice is easy to give, and just because it is what you want to hear doesn't make it true.

I was ready to say this, too. Ammunition: they can't simply say that the other person doesn't want to go part-time - that's absolutely irrelevant, because this is YOUR role we are discussing, and they are only temporary. The rebuttal to them if they try that, is to remind them that you plan to return to your role under the same conditions as before, part-time, and if there is too much work for one part-time person (you) then you would be more than happy to cooperate with another new part-time employee alongside you. Maternity-cover-person's preferences aren't part of the discussion, because this is YOUR role, not theirs, and remind them of that - they came on board under a clear understanding their role was temporary, and they've no right to retain the role at the expense of you.

Obviously if they can show that the role has materially changed due to business restructure, they will need to be talking about redundancy.

How part time are you, OP? If you are, say, 0.5FTE, then a job share seems like a viable possibility. If you're, say, 0.8FTE, then it's unlikely that a job share would work because it would be virtually impossible to recruit for someone to do 0.2FTE.

You don’t want to get into an argument, you just want to have the last word.

I haven’t said that restructuring won’t result in redundancies, of course it can and does.

I have said that you cannot make somebody redundant because there is more work to do and the incumbent staff don’t wish to increase their hours. I am specifically saying this is not a redundancy situation. This is a recruitment situation.

Thanks all for the replies. A lot of food for thought

From an HR perspective, my areas of concern would be that if taken to a tribunal the tribunal would decide 1. this was a way of keeping the full time maternity cover in place, therefore a breach of the right to return to the same/equivalent role and possible maternity discrimination, or 2. Potential sex discrimination as it rules out many women who are more likely to be working part time hours. 3. Potential unfair dismissal as it’s not a redundancy situation.

If I was told that I had to tell an established part time employee who was currently on maternity leave that they needed to come back full time or lose their job I would expect that employee to go to tribunal and I would expect to lose at that tribunal unless I had some bloody good reasons, and I’m 100% certain a settlement would be made outside of tribunal.

Just saying, get legal advice.

If this issue came up at work I would open the role to a job share and recruit an additional person…