Rights of Women Returning to Work After Pregnancy in England and Wales

As an employer, you may be familiar with your employees’ rights when they are pregnant, such as their right to take maternity leave. However, your employee also has rights relating to their pregnancy and maternity leave when they return to work. These rights might be less familiar to you. There are also rules regarding what you can and cannot do when your employee returns to work after pregnancy. This article will explain employees’ rights when returning to work after pregnancy and maternity leave. 

Discrimination

It is unlawful to treat a member of your workforce unfavourably based on a ‘protected characteristic’, like their age, sex or gender. If you treat someone unfavourably from any of the protected categories, this can amount to discrimination. Indeed, one of the nine protected characteristics is a person’s maternity status. 

As an employer, you should understand your obligations when your worker is on maternity leave and when they return to work. For example, if you treat your employee unfavourably when they return to work based on a decision made during their maternity leave, this could be unlawful discrimination.  

Importantly, you should avoid treating your employee unfairly. Likewise, it is essential not to dismiss them due to their maternity leave or the birth of their child.

Ordinary vs Additional Maternity Leave

When a woman takes maternity leave, it is in two parts. The first 26 weeks are ‘ordinary maternity leave’. Then, anything more than 26 weeks is ‘additional maternity leave’. 

In cases where your worker decides to take more maternity leave than originally intended, they must let you know eight weeks before their initial date of return to work. They must also alert you if they wish to return to work sooner than interned. If your worker does not let you know, you should assume they plan to take the full 52 weeks. Again, this is the ordinary maternity leave plus the additional maternity leave. If this is the case, your employee is not obliged to notify you of their return.

The Right to Return to Work

Alternatively, your worker might decide against taking additional maternity leave. If so, she has the right to return to the same job she left when starting maternity leave, with identical terms. However, where you cannot offer her the same role, perhaps because changes have taken place within your business, you must still offer her a job that is similar to her old one and on the same terms. 

For example, you must give the same:

• pay;
• level of seniority;
• job location;
• benefits; and
• entitlements to a holiday.

In addition, your employee might build up holiday leave when they are on maternity leave. In this case, you should both discuss when your employee might take this. Ideally, you should have this conversation before your employee returns to the workplace.

Your employee also has a right to request to change her hours, days and place of work when she returns from maternity leave. She may be entitled to make a flexible working request and could also ask for some changes to her job role. Whilst you do not have to agree to any changes, where your employee makes a flexible working request, you must:

• discuss the request in a meeting with your employee;
• give them a decision in writing with reasons for any refusal; and
• decide within three months.

Health and Safety

When your employee returns to work after having a baby, you are required to carry out a new workplace health and safety assessment.

If your employee is breastfeeding, you legally must ensure that she has a place to rest during her time at work. However, you are not legally obliged to provide her with a place to breastfeed or express milk, although she may request this from you, and it would be good practice to do so.

Rights of Women Returning to Work After Pregnancy

There are further valuable considerations you should understand regarding women’s right to return to work after pregnancy. These are as follows:

1. It is unlawful for you to make your employee redundant because they have either requested to work flexibly or are returning from maternity leave.
2. Where redundancy seems possible during your employee’s maternity leave, you should offer them a suitable alternative role.
3. If redundancy seems likely, but your employee has already returned to work after pregnancy, you are not obliged to offer them a suitable alternative role.
4. Where your employee does not return to work after maternity leave, they may be obliged to pay back a proportion (or all) of any enhanced maternity leave you have given them. This is also the case if your employee returns after maternity leave but leaves their job soon after. Notably, these details will be within the employment contract.
5. If your employee is sick immediately after their maternity leave, they do not have to return to work and can take sick leave with a sick note as they usually would. Likewise, they are entitled to full pay if this is what you normally offer your staff.
6. Where your employee does not feel ready to return to work after their maternity leave, they can request parental leave.

Key Takeaways

As an employer, you must respect your employees’ rights concerning their return to work after pregnancy and maternity leave. Some of these are legal obligations, such as the requirement to carry out a health and safety assessment. Importantly, you cannot carry out unlawful actions, such as discriminating against your employee based on a decision they made whilst on maternity leave. Also, your employee has the right to request changes to their role on their return, such as through a flexible working request. Whilst you are not legally obliged to accept these, you are legally obliged to consider them.

If you need help understanding the rights of employees returning to work after pregnancy in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 0808 196 8584 or visit our membership page.

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