As reported last month in ‘One in seven women lose their job whilst pregnant’, there appears to be a growing number of employees who never return to work following maternity leave. This is not just down to redundancy, but also as a result of employees feeling that they no longer fit in. However, unfavourable treatment on the grounds of pregnancy and maternity is unlawful and if the employee feels that she has been treated unfairly, or that she cannot return, it may lead to claims for discrimination.
Here, we highlight five key maternity obligations that employers should keep in mind, in order to avoid or reduce the likelihood of claims being made.
Firstly, should an employee on maternity leave be made redundant, the selection for redundancy mustn’t be connected to their pregnancy or maternity leave. Making the employee – who is returning from maternity leave – redundant, on the grounds that her temporary substitute was better, is likely to be seen as unfavourable treatment and connected to the fact that she had been absent on maternity leave. After all, if she hadn’t been on maternity leave the temporary substitute would never have carried out her work.
Second on the list is, where there are cut backs that lead to genuine redundancies, the employee on maternity leave will be entitled to preferential treatment when it comes to suitable alternative employment. This means that if there is a suitable vacancy then, even if there are several other redundant employees who could also fill the post, she will have the statutory right to be offered the job.
Thirdly, the employee on maternity leave has the right to be kept informed of all developments that affect her job and she must be updated, in relation to opportunities in the workplace, as if she was still at work. The employee who is not consulted, regarding changes, or misses out on applying for a promotion, due to being on maternity leave, will be able to bring a claim for discrimination.
The fourth point to consider is that the employee on maternity leave now has the right to continue accruing all benefits that do not relate to remuneration throughout the maternity leave period. It used to be the case that the right to continue to enjoy contractual benefits, other than wages, was limited to the six months ‘Ordinary Maternity Leave Period’. However, the employee now has the right to continue enjoying these contractual benefits for the full 12 month maternity leave period.
Lastly, whilst there are many more maternity rights that could be highlighted, the arrangements made when an employee returns to work should always be taken into account – this is generally the time when evidence of most problems arises.
Summary – It is clear that the employee has the right to return to work following her maternity leave; this will usually be to the same job that she had before starting maternity leave. However, it will very often be the case that before returning, the employee will request that she’s allowed to return on fewer hours or less days per week. There is no obligation under the maternity legislation for the employer to agree to such an arrangement. However, there is a statutory right to request flexible working, which requires the employer to follow a prescribed procedure and give proper consideration to the request. Failing to do so may lead to claims, but the bigger danger – should the request be refused without good grounds – is that this amounts to indirect sex discrimination. This is on the basis that the requirement to work full-time is one that places women at a disadvantage, as they generally will have greater child care responsibilities than men. In these circumstances, it will be important for the employer to show that the requirement to work full-time is justified, because of the requirements of the business – for example, to meet customer demand.