You have a right to return to your job after maternity leave.
The short answer is yes, you can return to your job. However, whether this is an unconditional right depends on the extent of your protection from unfair treatment – and that in turn depends on how much maternity leave you’ve taken.
How long am I protected for?
It’s important to remember that your protected period as a woman who is pregnant or on maternity leave ends on your return to work – including on the start of a period of annual leave even if you haven’t actually gone back to work yet.
Can I return to my job after maternity leave?
If you go back to work at or before the end of Ordinary Maternity Leave (OML), so haven’t taken more than 26 weeks’ maternity leave, you are entitled to return to your own job, as it was before you took maternity leave. You’re also entitled to any pay rises that have been introduced while you were on maternity leave.
However, if you take more than 26 weeks’ maternity leave, so take some or all of your entitlement to AML, the right to return is conditional. You’re entitled to return to your own job unless it’s “not reasonably practicable”.
When is it “not reasonably practicable” to return to your own job after maternity leave?
The easiest example to use here is redundancy. Other situations could make it “not reasonably practicable” to let a woman on AML return to her own role, but it would depend on the facts and circumstances.
What is a redundancy?
A redundancy basically occurs where an employer has a reduced requirement for people to do the job you do, or they don’t need the role at all anymore, so it’s removed from the organisation. Redundancy can also happen where an employer closes their workplace completely or moves to another location.
So, if a genuine redundancy happens (emphasis on the “genuine” here), it can be ok to make a woman on maternity leave redundant. However, if she has been unfairly selected, or a “redundancy” (imagine those quote marks are flashing neon) has been engineered with the aim of miraculously selecting her or erasing her role with the aim of removing her, that will be an unfair dismissal as well as sex and/or maternity discrimination.
What happens if I get made redundant while I’m pregnant?
If you’re made redundant because you are pregnant, or are due to go on maternity leave, or because you’ve been unwell because of your pregnancy, that might be an automatically unfair dismissal and/or discrimination. The additional protections regarding alternative employment that apply if you’re made redundant while on maternity leave don’t apply while you’re pregnant though.
That said, the selection criteria used, and your scores, should be closely examined – for instance, has the employer taken account of any performance issues that were actually due to illness or other conditions related to pregnancy? You should also be considered in the usual way for any suitable alternative employment, ignoring your pregnancy and impending absence on maternity leave.
Your employer is entitled (within reason) to ask that you continue to be office based after maternity leave.
What happens if I get made redundant while on maternity leave?
First of all, if your employment does end because of redundancy, you’re still entitled to SMP as usual, and your employer has to continue to administer and pay it to you as normal. You’d also be entitled to notice, statutory redundancy pay, accrued holiday pay, and any bonus/other contractual payments due on termination.
As a woman on maternity leave, you have additional protections in a redundancy situation. This is on top of your rights not to be discriminated against because of your maternity/sex, and ordinary unfair dismissal rights if you’ve got more than 2 years’ service.
Those additional protections mean that, although it is possible to make you redundant while you’re on maternity leave, your employer must offer you any suitable alternative vacancies elsewhere in the organisation. That isn’t just a right to apply for a suitable alternative vacancy – you’re entitled to be offered it.
The only scenario where it’s potentially ok to make you apply would be if there’s more than one woman who’s on maternity leave, their roles are all redundant, and the vacancy is suitable for them all, so there is no option but to have them all compete for the role.
So, speak to us if you’re being asked to apply for suitable alternative roles when made redundant while on maternity leave. Actually, speak to us if you’re put at risk of redundancy or made redundant during maternity leave. There may be little we can do to avoid your employment ending, but hopefully we can help you leave with a decent severance package that will soften the blow and act as a buffer while you find a new job, alongside the myriad other things you need to do as a new parent.
Can my employer change my job after maternity leave?
Sometimes employers will have reorganised workload while you’ve been off, or there may be a redundancy in that your role is changed so substantially that it doesn’t exist but a new role has been created. This can be ok, though we’d look at the old and new roles, and examine whether the employer has been fair to you, as well as whether it would have been reasonably practicable for you to return to your old role.
Your employer can’t just keep your temp maternity cover in your job and transfer you elsewhere – if your job still exists, it can’t just be handed to someone else.
Do employers have to offer flexible working after maternity leave?
No. There are 8 set reasons to refuse a flexible working request – see our guide to flexible working HERE. Employers can refuse a flexible working request if they can show that one of those 8 reasons applies.
Can employers refuse to reduce my hours after maternity leave?
Yes – if you request to work flexibly by reducing your hours, and your employer can show that one of the 8 set reasons to refuse your request applies, they can refuse your request. However, depending on the circumstances, if they unreasonably refuse a request, or give spurious reasons for refusing, you may have a claim, usually for indirect sex discrimination.
There are lots of protections for pregnant women and women on maternity leave – and of course for people on shared parental leave, adoption leave, paternity leave, and all types of “family friendly” leave. By focussing on pregnancy and maternity in this blog, we are absolutely not ignoring other family issues – we’re very conscious that not all pregnancies end with a baby, and that adoption, IVF, and surrogacy also raise issues about time off and carry important rights. We’ll cover other rights and types of leave elsewhere – if we tried to put it all in one place, this would be a book rather than a pithy, easy to read blog!
If you need advice about anything mentioned in this blog, or are concerned about anything your employer is doing or proposing to do, just get in touch with us at firstname.lastname@example.org and we’ll arrange a time for a brief chat to get initial details and talk through how we can help.