Legal Article - Employment Law

Returning to Work after Maternity Leave

Women returning from the 26-week maternity leave have the right to return to employment with the same terms and conditions (or any new ones agreed for her category of job since the leave began). They do not have to give notice of return and can just come back to work on the first working day following the end of the leave period.

She can only extend the 26 weeks if the baby has not yet been born, or she is prohibited by statute from returning. If she wishes to return before the 18 weeks’ period is over she has to give at least 21 days notice of the date she intends to return.

If no notice is given, or less than 21 days notice is given, the employer can postpone her return until 21 days notice has been given, but not beyond the end of the 18-week period.

Women with the right to additional maternity leave (i.e. 29 weeks after the beginning of the week in which the baby was born) can still return after the 26 week period or at the end of the 29 weeks as described above.

To retain her right to return before the end of the longer period, however, she must give her employer in writing notice of the day on which she proposes to return. This notice must be given at least 21 days before that date otherwise the employer can postpone her return for at least 21 days.

If the employee cannot return to work at the end of the additional maternity leave because of illness or some other reason, then the normal company rules apply e.g. on sick leave, extended holidays etc.

On return, the employee has the right to return to work in a position originally held or one that is a suitable alternative in terms of pay, conditions and benefits and promotional opportunities. 

Also, her seniority, pension rights and similar rights that depend on continuity of service are retained. If she worked full-time prior to her maternity leave, she does not have a right to return as a part-time employee.

However, a refusal to allow her to work different hours may amount to indirect sex or marital discrimination. Whether the employer acts unreasonably in refusing her request to work part-time will depend upon such factors as:
 
• The size and resources of the employer

• The type of work the employee does e.g. costly to train, or a very technical job

• Any restraints on the way the work is organised e.g. are such options as jobsharing, flexible hours and working from home, possible

• What efforts the employer has made to accommodate the employee’s request e.g. varying training arrangements
 
• Whether the requirement for full-time work corresponds to a real need of the business, is appropriate with a view to achieving that objective, and is necessary to that end
 
• Whether it raises genuine supervisory or disciplinary concerns

• The need to maintain administrative efficiency.

Published: 27 May 2011

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