Returning from maternity leave – your legal FAQs

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We often get emails from women asking about their legal rights as an employee. And one subject that comes up time and time again is what their employer can and can’t do when they return from maternity leave.

To help clear this often confusing issue up for as many of you as we can, we put some of your most frequently asked questions to an employment lawyer.

Returning from maternity leave – your legal FAQs

Solicitor Angela Lally from Simpson Sissons & Brooke answers your maternity leave legal FAQs.

Can my employer alter my job requirements while I’m on ordinary maternity leave?

No. By Regulation 18(1) of MPL Regulations, you are entitled to return to the same job as you was in before your absence. The terms of employment must be the same or no less favourable, except in redundancy situations.

What if I take additional maternity leave?

In this scenario your employer has a little bit more flexibility. If they, for example, have a reorganisation they may reasonably make changes if it is not practicable for you to return to your old role.

What if a reorganisation has taken place? Should I be provided with a reasonable alternative?

If for some reason other than redundancy your job role has changed and it is not reasonably practicable for you to return to the same job, you are entitled to return to a different job that is suitable to you and is satisfactory in the circumstances. The terms and conditions should be no worse than had no absence taken place.

Can I request flexible working?

If you have 26 weeks continuous service you are entitled to request flexible working. This request must be considered by the employer and dealt with in a reasonable manner.

You must be notified of your employer’s decision within the three month decision period. Your employer doesn’t have to accept your request, but a refusal would need to be for one of the following reasons:

  • The burden of additional costs.
  • Detrimental effect on ability to meet customer demand.
  • Inability to reorganise work among existing staff.
  • Inability to recruit additional staff.
  • Detrimental impact on quality.
  • Detrimental impact on performance.
  • Insufficiency of work during the periods the employee proposes to work.
  • Planned structural changes. 

Can I bring an employment tribunal claim if my request for flexible working is refused?

It may be you have been the victim of direct or indirect sex discrimination as a result of being refused flexible working hours, and have a legitimate claim to make against your employer.

What is ‘direct’ discrimination?

An example of direct discrimination is if a father is rejected for flexible working hours to look after a child, but other female employees have not been denied such a request because an employer feels it is more important for a woman to look after a child.

And what is ‘indirect’ discrimination?

An example of indirect discrimination would be if you are told there is no scope for a job share for your role following a request to work part time, but no objective justification has been provided as to why. The reasons this could be indirect discrimination is because more women juggle the dual responsibilities of work and childcare.

Want to read more about your rights as a working mum?

You can read more information about your legal rights and other tips and experiences for working mums in these articles:

Angela Lally is a solicitor at Quality Solicitors SSB. For £99 they offer an Ask the Legal Expert appointment for initial advice. This can help you with the parts you really need help with, keeping legal involvement and costs to a minimum. 

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