Leave and Right to Return
Regardless of length of service or hours of work, female employees are entitled (subject to various notice requirements) to 26 weeks’ Ordinary Maternity Leave ("OML") and 26 weeks’ Additional Maternity Leave (“AML”) and to return to work without giving notice of the date on which they intend to return (unless they intend to return early in which case 8 weeks’ notice must be given).
The woman is not allowed to work at all within two weeks of the birth (or four weeks in certain industrial positions).
No longer does a woman need to have had at least 26 weeks’ continuous employment at by the 15th week before the Expected Week of Childbirth (“EWC”) to qualify for AML. A pregnant employee must notify her employer by the 15th week before the EWC (unless it is not reasonably practicable to do so), that she is pregnant, her expected week of childbirth and when she wants her maternity leave to start. OML can start any time from 11 weeks before the EWC. It is possible to change the start of maternity leave on 28 days’ notice, unless it is not reasonably practicable to do so.
Once you have received notice that an employee is pregnant as above, you must respond within 28 days, giving the date on which she is expected to return to work assuming she takes her full leave entitlement. If the employee intends to take her full entitlement to maternity leave she will not be required to give any further notification to her employer that she will be returning to work at the end of her maternity leave; she need only turn up to work. However, if she wants to return to work before the end of her full maternity leave entitlement then she must give her employer 8 weeks’ notice of the date she intends to return.
There is no longer a requirement for the employer to write within the three weeks before the end of OML to ask the employee whether she intends to return at the end of, or during, the AML period. The onus under the new scheme is on the employee to give notice if she intends to return early, even though she need do nothing if she intends to return at the end of her full entitlement. Of course, the employer is obliged to inform the employee of the date that she is expected to return after her leave, so there should be no confusion.
The Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations 2008 extended the rights of employees with an EWC commencing on or after 5th October 2008. All expectant mothers are now entitled to receive all non-pay contractual benefits during AML. Previously employers were only obliged to provide such contractual benefits during OML, which benefits may include a company car or gym membership and so forth.
If the employee returns to work at the end of OML, she must be allowed to return to the job in which was employed before her absence, along with the seniority, pension and all other rights as they would have been if she had not absent, and on terms and conditions not less favourable from those which would have applied if she had not been absent. This includes any pay rises which would have been awarded to her during her absence.
If the employee returns to work at the end of AML, she must be allowed to return to the job in which she was employed before her absence. If that is not reasonably practicable, she must be allowed to return to a job which is both suitable for her and appropriate in the circumstance, on terms and conditions not less favourable than those which would have applied if she had not been absent, and seniority, pension and other rights as they would have been but for her absence, but ignoring her period of AML.
Where temporary illness prevents the return to work, refusal of the right to return could amount to unfair dismissal. In addition, it is likely to be automatically unfair to dismiss a female at any time during her pregnancy for absence due to illness resulting from the pregnancy.
If any employee is too sick to return at the end of OML/AML (as appropriate) then she should be treated as if she were absent on sick leave as normal. In other words, she must keep you notified as to her expected return, reasons for absence and submit medical certificates as and when required. She will receive any sick pay as she would normally.
However, note that the employee may add a period of Parental Leave at the end of AML. Please see the Parental Leave section for further information in this regard. Furthermore,employees who have at least 26 weeks continuous service and who have children under 17, disabled children under 18, or who care for adults who are relatives or live with the employee have the right to ask their employer to consider a request for flexible working.
Consequences of Refusing the Right to Return
If you fail to allow the woman to return at the end of OML/AML (as appropriate) this constitutes dismissal which is considered automatically unfair. In addition, this will be directly discriminatory on the grounds of her sex and there is no limit to the level of damages that can be awarded for such discrimination. Furthermore, the one-year qualifying period for normal unfair dismissal claims is not applicable in discrimination cases nor in cases of automatic unfair dismissal where the dismissal is by reason of pregnancy.
If a pregnant woman or nursing mother is suspended from her job for health and safety reasons, she must be offered alternative work or, failing that, full remuneration during such medical suspension. In managing such issues, policies and procedures as to exercise of such rights should be established, in particular regarding the necessary notification by the employee.