How safe is my job during maternity leave?

Mouthy Money Your Questions Answered panelist Amy Dowling answers a reader’s question about job security when going on maternity leave.

Question: I’m pregnant and expecting my first child in early 2023. I’m very anxious about arranging my maternity leave as I’ve only just been promoted. Is there any way I can guarantee my job will still be there after maternity leave?

Answer: All employees are legally entitled to up to 52 weeks maternity leave and the right to return to work. However, regardless of the amount of time you have taken, the return can often seem very daunting.

Your employer should assume that you are taking the maximum amount of maternity leave unless you give them notice to shorten this. The number of weeks you take will be dependent on your circumstances and your rights on return will differ according to how long you have taken. 

Maternity leave is split into two sections.

Ordinary Maternity Leave (OML) is the first 26 weeks of maternity leave and if you return before the end of this you are entitled to return to exactly the same job on the same terms and conditions as you were doing immediately before. You must give your employer at least eight weeks’ notice if you decide to return to work early.

Additional Maternity Leave (AML) is the second 26 weeks out of the 52 weeks of maternity leave. 

If you return during any part of AML you are entitled to return to exactly the same job on the same terms and conditions as you did immediately before but with one noticeable change.

If your employer can show it would not be “reasonably practicable” for you to return to the same job they are entitled to offer you an alternative on similar terms and conditions. It is up to your employer to show a reason as to why it is not “reasonably practicable”, such as a business reorganisation, or another business-related reason which requires a change to your role. 

This can be difficult to demonstrate in certain situations such as if your maternity cover is still doing your job. 

If your employer can get past this hurdle, you are still entitled to be offered a suitable alternative job on similar terms and conditions which will need to be looked at carefully.

However, it is discrimination to treat a woman unfavourably on the grounds of her pregnancy or maternity leave.

Business Complications

Issues can arise when someone is prevented from returning to their old job, where their job or their responsibilities have been given to someone else, they are demoted, their role changes, or they are otherwise disadvantaged because of their maternity leave. 

If this happens, you may have potential employment tribunal claims for maternity discrimination and/or unfair dismissal.

It may be that a genuine redundancy situation arises during maternity leave such as the workplace closing, less work to do or fewer employees being required. 

You can be made redundant during maternity leave, but your employer must not select you because you are on maternity leave. Instead, they should consider a fair redundancy process and consult with you. 

You are entitled to be offered a suitable alternative vacancy in priority to others if one is available and you do not need to attend interviews or selection assessments. If you are not consulted about changes, offered suitable alternatives, or are made redundant because you are on maternity leave you may have potential employment tribunal claims.

It is very important to talk to your employer if you are concerned about any changes to your job during maternity leave. You should try to keep things amicable and constructive for as long as possible in order to maintain a good working relationship. 

You need to explain why you feel disadvantaged because of your maternity leave and it is often useful to provide your employer with information about your right to return to your old job.  

If you do need to raise matters more formally, speak to Human Resources or senior managers and explain why you feel disadvantaged and what changes need to be made. 

As a last resort, you may need to use your employer’s grievance procedure to complain about the way you have been treated. 

Employment tribunal claim

While it is important to keep talking to your employer, if you are considering making an employment tribunal claim you should bear in mind that there is a strict time limit to comply with. 

You will usually have three months (less one day) from the date of the act or series of acts you are complaining about. You must contact the Advisory, Conciliation and Arbitration Service (ACAS) for what’s called ‘early conciliation’ within that period so it is very important that you do not delay. 

You may not be able to return to work immediately after your maternity leave and if so, it is worth exploring other types of leave you can take such a parental leave, although your rights on return may differ. 

Not returning

If you decide not to go back, you should give the notice required in your employment contract ahead of your return date. You would be entitled to be paid any accrued annual leave and not have to pay back any Statutory Maternity Pay (unless you secured an alternative role in that period) or Maternity Allowance.

However, if you have received extra occupational maternity pay it is important to check your contract for details regarding whether you would be required to pay any back. 

It is also worth being aware that you may have the right to request flexible work when you return. If you want to make such a request, do so in writing and consider how you think the new arrangement will work so that you can negotiate the change with your employer. 

You may also wish to consider using Keeping in Touch (KIT) days during maternity leave or reaching an agreement to use accrued annual leave to stagger your return as both of these options can assist with the transition back to work. Further information can be found on our website.

This information applies to employees and your rights may be different if you have a different employment status. If you think that you have suffered unfavourable treatment because of your pregnancy or maternity leave, you should seek legal advice as soon as possible.

Amy Dowling is an experienced lawyer that specialises in advising parents, you can read her material on Maternity Action or @MaternityAction on Twitter.

About our expert: Amy is an experienced employment lawyer who has worked in private practice in city firms for a number of years acting for employers and employees. She has worked at Maternity Action for four years and advises existing and expectant parents on a wide range of employment issues and benefits providing casework support. Amy enjoys training and writing about employment issues. Outside of work she enjoys yoga, reading and spending time with her family.

Mouthy Money Your Question Answered compiled by Rebecca Goodman

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