Maternity leave and time off work
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If a week is a long time in politics then 12 months is an extremely long time in an employment relationship. We are often consulted on the thorny issue of employees returning from maternity leave in situations where the business has changed or moved on.
The right to return to the "same job" after maternity leave ends
Current maternity legislation provides for employees to take up to 12 months maternity leave and for the right for employees to return to the same job on the same terms and conditions of employment. Where the employee has taken more than “Ordinary Maternity Leave” (ie the first 6 months), the employer has more leeway and if it can show that it is not reasonably practicable to allow the employee to return to the same job then it must offer her another job. However that job must be suitable, appropriate and on no less favourable terms and conditions. It is a “one size fits all approach” and there is no exemption for small employers although of course small employers will find it much more difficult to comply.
In looking at what is “the same job” Tribunals will accept that it is not always necessary to “freeze” the precise job content and duties at the time the employee left. On that basis, for example, a school was not in breach when a teacher who taught reception classes at a primary school at the time she commenced maternity leave was required to come back to general teaching. The teacher had no right to return to teaching only reception classes.
However, as a general rule we would suggest:
- Consider how long maternity leave has lasted and what the precise legal obligation is
- In most cases, specific cover should be arranged and jobs should be left open for the maternity leave returner to return to.
- Make the arrangements for maternity leave cover clear
- Keep in touch with employees on maternity leave – arrange for them to receive any newsletters and business updates and to come to social events
- If there has been a necessary business reorganisation or key changes are necessary, consider carefully and take advice on whether you can rely upon the “not reasonably practicable” option above. In all cases, arrange to meet with the affected employee and explain any necessary changes.
Maternity leave and redundancy
Contrary to popular belief it is perfectly possible to include employees who are on maternity leave within your redundancy planning. However, employees taking maternity leave must not be adversely affected by reason of taking the leave itself.
One example would be awarding less points to the maternity leave employee in a redundancy selection exercise because the employee has not been actually at work and generating new business. Care must be taken to ensure that employees are not penalised in this way. If applying selection criteria, consider awarding an average score, or taking into account a period before maternity leave started.
Care must be taken to involve the employee fully in the redundancy process, and we would recommend inviting such employees in to hear any redundancy announcements or at least ensuring that they hear of the same first hand from the employer. Such employees must, of course, be subject to redundancy consultation in the same way as other affected employees.
Employees who are made redundant during maternity leave have further protection in that they must be offered any suitable alternative employment (as opposed to merely being given an opportunity to apply) and in this regard such employees take precedence over “ordinary” employees affected by redundancy.
Disclaimer – The contents of this page are provided for general guidance only and do not replace the need to obtain legal advice about any given situation.
