What do we need to do about an employee returning from maternity leave?

Your questions answered about employees returning from maternity leave

We often receive enquiries from employers regarding employees who are about to return from maternity leave* – here we answer some of the most frequently asked questions.

Can an employee change their expected return date from maternity leave?

Yes, an employee can change their return-to-work date provided they give adequate notice. 

After an employee has informed their employer of the date that they intend to start their maternity leave, the employer must notify them of the date their statutory maternity leave will end (which will be 52 weeks from the start date given).  This will be the employee’s expected date of return and there is no requirement for the employee to provide any further notice to the employer unless they want to return at a different time. 

If the employee wants to return to work before the end of their statutory maternity leave, they are required to give their employer at least 8 weeks’ notice of their new return date.   Provided the employee 8 weeks’ notice, the employer cannot refuse the employee’s request to work early.  It is only if the employee doesn’t give 8 weeks’ notice that an employer can postpone their return until the full 8 weeks’ notice has been given.  Of course, an employer can agree to short notice or waive the notice requirement entirely, but normally some advance notice will be needed to re-arrange work schedules.

Quite often an employee will initially inform their employer that they want to return earlier than the end of their statutory maternity leave but will later change their mind and want to delay their return date.   This is the employee’s prerogative.  However, they are still required to tell their employer of their new return date at least 8 weeks before the date they originally wanted to return. 

If an employee wants to return later than the date their statutory maternity leave ends, the employer needs to agree to this because there is no right to further time off.   Commonly, it will be agreed that the employee will take all or some of the annual leave they have accrued during their maternity leave after their maternity period ends, because that way the leave is paid.   Alternatively, the employee may ask to take a period of parental leave immediately after their statutory maternity leave ends, but this is less common because it is unpaid and can be postponed by the employer if it would cause “operational disruption”.

What are an employee’s rights on returning from maternity leave?

The answer to this question varies slightly according to when the employee returns to work.  

If the employee is returning before the end of the first 26 weeks of maternity leave, they have the right to return to the same job that they did before they went on maternity leave and on the same terms of employment.     

If the employee is returning after the first 26 weeks of maternity leave, they are entitled to return to the same job and on the same terms and conditions as before their absence, unless this is not reasonably practicable, in which case they are entitled to return to a different job that is both suitable for them and appropriate in the circumstances.    

These rights are contained in the Maternity and Parental Leave etc Regulations 1999 (‘MAPLE’ Regulations).

In practice, there is little difference between the rights of an employee returning within the first 26 weeks of maternity leave and those of an employee returning after 26 weeks because it is very difficult for an employer to argue that it is not “reasonably practicable” for an employee to return to the same job as they carried out before they went on maternity leave.  

An employee returning from maternity leave will also be entitled to any staff pay increase that has been awarded during their absence and any other new benefits or improvements to terms that have been introduced while they have been away. 

What if the employee’s role has become redundant?

The exception to the right to return to the same job (or a suitable and appropriate role if it is not reasonably practicable to return to the same job) is if a redundancy situation has arisen and the role of the employee on maternity leave has ceased to exist.     

In a redundancy situation, the employer will need to ensure that they carry out a fair selection process and a full and fair consultation process with the employee on maternity leave to minimise the risk of a claim under the MAPLE Regulations but also a claim of unlawful maternity or pregnancy discrimination.   

Given the challenges that can present themselves and what can potentially be at stake where a redundancy situation arises during an employee’s maternity leave, we recommend that employers seek legal advice at an early stage and before commencing any redundancy process. 

An important right that must not be overlooked if a redundancy situation has arisen during an employee’s maternity leave, is the employee’s entitlement to be offered any suitable alternative vacancy that the employer has available, in priority over other employees.   This is an absolute right which means that it does not matter if the employer considers another employee to be better qualified for the available role; the employee on maternity leave has priority.  

It is worth noting here that the law is set to change in this area and the protection currently afforded to employees on maternity leave is to be extended to pregnant employees and those who have recently returned (up to 6 months) from maternity leave.   This is not law yet, but it goes without saying that the fact that an employee is pregnant or has recently returned from maternity leave should not be a factor when making any decisions that could detrimentally impact those employees, whether in a redundancy context or otherwise, because of the risk of pregnancy, maternity or sex discrimination claims. 

An employee on maternity leave has asked to return to work part time – do we have to agree to this?

An employee does not have the right to return to work part time or on different terms to those that she was employed on before she went on maternity leave.   On returning from maternity leave, the employee has the right to return to the same job on the same terms and conditions as before they went on maternity leave.  There is no right to return to the same job but on fewer hours/a different working pattern.  

Nonetheless, it is extremely important that any informal or formal flexible working request made by an employee returning from maternity leave is given proper and full consideration.  Any employer who receives such a request (a) should follow the statutory procedure for dealing with flexible working requests (b) keep an open mind and (c) ensure that if they are unable to agree to the request, they have very good reasons for doing so and communicate these to the employee.

The reason why it is important for an employer to act carefully and considerately is that, firstly, if an employer refuses an employee’s flexible working request, the employee may well have no option but to leave because the job is incompatible with their childcare arrangements.    Given this stark choice, it is incumbent on the employer to make sure they have fully considered the employee’s request and exhausted all other reasonable alternatives.

Secondly, from a legal perspective, if an employer does not consider the flexible working request of an employee returning from maternity properly or at all, they risk an indirect sex discrimination claim.    An indirect sex discrimination claim arises when an employer applies a policy, rule or practice which (a) applies equally to both sexes but puts women at more of a disadvantage than men and (b) that policy or rule cannot be justified.  In the context of an employer refusing a female employee’s request to work part time or to change her working pattern after maternity leave, it is accepted that the requirement for an employee to work full time or change their working pattern puts women at a disadvantage in comparison to men, as more women, statistically, have the greater share of childcare obligations.   It would therefore fall to the employer to objectively justify their decision to refuse the request – something which will be very hard to do unless the employer is able to show that it fully considered the request from the outset and that any refusal was based on strong business reasons.   

Is an employee entitled to take their accrued holiday immediately after their maternity leave ends?

As employers will be aware, employees on maternity leave continue to accrue their annual leave.   As annual leave cannot be taken during the maternity leave period, they must be allowed to take it outside their maternity leave period.    However, although many employees will want to take their accrued untaken holiday immediately after their statutory maternity leave ends, there is no right to do so; it is subject to the employer’s agreement and (unless the contract of employment says anything to the contrary) the employer has the right under the Working Time Regulations to require an employee to take, or not to take, annual leave at a time of their choosing.  

However, employers should exercise caution before refusing an employee’s request to take annual leave immediately following the end of their maternity leave and consider carefully what their reasons are for refusing such a request.   If an employer doesn’t have a reasonable reason for their refusal, there is a risk that the employee will conclude the refusal is discriminatory (i.e. connected to the fact they have taken maternity leave).   Also, if a request for annual leave is refused, the employee must be allowed to take it at some other point.  

In practice, in most cases, the employee will agree with their employer, in advance of the start of their maternity leave, when they will take the holiday that they will accrue during maternity leave.   Often employees will want to take some of the holiday entitlement immediately before they start their maternity leave whereas others may want to take it after their maternity leave ends but before they return to work.  The key is agreeing holiday before the employee leaves to go on maternity leave.  Otherwise, if left until the employee is due to return, it can create bad feeling if a holiday request is refused and can result in making the employee feel uncomfortable about returning to work.

How do we calculate the accrued holiday entitlement of a previously full-time employee who returns from maternity leave to work part time?

The holiday entitlement that an employee accrues during their maternity leave will be based on the hours that they worked before they went on maternity leave.   So, for example, if the employee worked 37.5 hours before they went on maternity leave, they are entitled to be paid for 37.5 hours if they take a week of their accrued, untaken holiday leave after the maternity leave period ends.    The holiday entitlement accrued during the maternity leave period is not calculated according to their new, post-maternity leave, hours of work.  

What do we need to do if an employee tells us they don’t want to return to work?

An employee who decides not to return to work after their maternity leave ends should give notice of termination in accordance with their contract of employment.    If the employee gives short notice or no notice then they will be in breach of their contractual obligations, however, an employer should consider carefully what action to take (if any) in relation to such a breach. 

The employer should acknowledge the employee’s resignation in writing, confirm the last date of employment and remind the employee of the need to observe the confidentiality provisions in their contract of employment and any post-termination restrictions.   If the employee owes the employer any money (e.g. because they took more holiday before maternity leave than they accrued or received enhanced maternity pay which was conditional on them returning to work) then the employer may wish to inform the employee of this and propose a repayment schedule. 

Returning from adoption leave

*Please note that the statutory rights mentioned apply equally to those returning from adoption leave.

How we can help

These are only a handful of questions that we get asked in an area where there are a vast number of statutory regulations, many of which are underpinned by anti-discrimination legislation.   We therefore recommend getting advice in all but the most straightforward of cases.  At Real Employment Law Advice, we are experienced in advising employers on pregnancy, maternity and parental rights in the workplace and we would be very happy to help any employer who needs support in this area.