Please also see: A Summary of your Maternity Rights
Pregnant employees are, of course, entitled to return to work after maternity leave.
The employee’s rights are slightly different depending on whether she is returning from Ordinary Maternity Leave (up to 26 weeks) or additional maternity leave (26-52 weeks).
Returning after Ordinary Maternity Leave
If the employee is returning after ordinary maternity leave:
“She is entitled to return to the job in which she was employed before her absence… on terms no less favourable than those which would have applied if she had not been absent”.
This means that she is entitled to return to exactly the same job on the same terms. This will not apply if the job no longer exists i.e. if there has been a redundancy situation during the maternity leave.
Example 1: Ms Smith worked as the full time personal secretary to the managing director. When she returned from ordinary maternity leave she was offered the position of pool secretary, to work as secretary to a number of staff. Because the position that she was offered was of a lower status, Ms Smith has been unfairly treated and would have a claim for unfair dismissal and sexual discrimination. See the 1982 case of Taylor v Staffordshire Building Society.
Example 2: Ms Jones is a full-time interior designer. When she returned from ordinary maternity leave, she is offered part time work. This is an example of an employee being offered less favourable terms and conditions, and Ms Jones would be able to claim damages for unfair dismissal and sexual discrimination. See the 2002 case of Jones-Fraser v First Rung Ltd.
Returning after Additional Maternity Leave
If she is returning after additional maternity leave, the situation is slightly different:
She is again “entitled to return to the job in which she was employed before her absence… on terms no less favourable than those which would have applied if she had not been absent” subject to it being reasonably practicable for her to return.
The onus is on the employer to prove that the it was not reasonably practicable to give the employee her old job back, but of it is able to do this, her employer must offer her “another job which is both suitable for her and appropriate for her to do in the circumstances”. This means that the terms of the new job (pay, benefits and hours etc) must be the same.
Example: Ms Smith is a full time researcher. When she goes on maternity leave, she is replaced with a very competent temporary replacement, who, during Ms Smith’s maternity leave, asks to take on the role on a permanent basis. When Ms Smith returned from additional, she was offered a different job at the same rate of pay. Her employer was unable to establish that it was not reasonably practicable to let her have her job back, and as such, she was unfairly dismissed and discriminated against.
If an employee wants to return early from maternity leave, she must give her employer at least 8 weeks notice.
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