Employment Solicitor, James Conley reviews the right to return to the same job, flexible working requests plus health and safety risks within the business.
It is up to the employee to decide how much maternity leave they would like to take; the minimum is 2 weeks, with a maximum of 52 weeks. If the employee decides not to return to work, their contract will state the amount of notice that is required to give. It can be difficult to balance child care and work commitments therefore employees are able to accept the same role on their return or request reasonable change to their working hours to accommodate childcare.
Right to return to the same job
If the employee takes only Ordinary Maternity Leave (OML), returns before the end of OML, or combines maternity leave with a period of shared parental leave where the total leave is 26 weeks or less, the employee is entitled to return to the ‘same job in which they were employed before their absence’. This means terms of employment must be the same as they would have been had they had not been absent (unless a redundancy situation has arisen). The employee will also be entitled to benefit from any improvements as if they had not been away, such as a pay rise etc.
If the employee has taken any period of Additional Maternity Leave (AML) or shared parental leave which when combined with maternity leave amounts to more than 26 weeks leave or has taken a period of at least four weeks’ parental leave on top of her OML, and there is some reason (other than redundancy) why it is not reasonably practicable for the employer to permit the employee to return to the same job then the rules are slightly different. The employee is not guaranteed the same job upon their return to the office, only a job which is both suitable for the employee and appropriate in the circumstances. Additionally, the terms and conditions must not be less favourable than they would have been had the employee had not been absent.
Flexible working requests
On returning to the office, employees may wish to change their hours of work to accommodate childcare arrangements. If an employer refuses to allow a woman to work part time, or to change her working pattern, this may be grounds for bringing a claim for unlawful indirect sex discrimination. This is because it has been established statistically that more women than men have childcare responsibilities and are therefore disadvantaged by a requirement to work full-time. In such a case, the employer would need to show that there was objective justification for the requirement for the employee to work full-time.
Health & Safety in the office
The employer is required by law to carry out a risk assessment covering the risks posed to new or expectant mother and their babies.
It is worth reviewing current risk assessment policies in line with current covid-19 restrictions and guidance, which are being updated on a regular basis.
An employer is required to assess the risks to its employee, including an employee who is breastfeeding, and to do what is reasonably practicable to control those risks under the MHSW Regulations. The Health and Safety Executive (HSE) has produced a flowchart to help employers with the process (see https://www.hse.gov.uk/mothers/docs/pregnant-workers-flow-chart.pdf).
Employers are required to provide suitable facilities for breastfeeding mothers to rest (including facilities to lie down) and to provide adequate rest and meal breaks. The toilets are not ‘suitable facilities’.
Employers are not obliged to provide facilities specifically for breastfeeding and there is no right to time off work for breastfeeding. However, HSE guidance recommends that other facilities (such as a private, clean environment, for expressing milk and a fridge for storing it) should be provided.
- Other Health and Safety Risks could also include:
- Manual handling
- Movements and postures
- Biological agents
- Infectious diseases (i.e. Covid-19)
- Facilities (including rest rooms)
- Mental and physical fatigue, working hours
- Stress (including post-natal depression)
- Working with visual display units (VDUs)
- Working alone
Other considerations to discuss when returning to work from maternity leave include:
- Sickness after maternity leave
- Annual leave after maternity leave
It is important to communicate with your employee at all stages during the pregnancy, maternity and post natal stages. HR and Employment Law can be confusing and complex, it is therefore recommended that employers have a HR policy in place which covers all aspects of maternity leave and company expectations.
While we have highlighted the main concerns for an employer to address, there are always other considerations within individual industries and each pregnancy should be handled on a case by case basis.
To read our Employment Law and Maternity Rights series: please use the links below:
If you would have further questions regarding any of the points raised in our employment law and maternity rights series, which have included before, during and after maternity leave or you wish to speak to a member of the Employment team, please do not hesitate to call 01603 598000 or email firstname.lastname@example.org.
*The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.