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Employment Question of the Month: Maternity Rights

Posted on Apr 28, 2014 by Hayley Anderson  | 0 Comments

What are an employee’s rights whilst on maternity leave if they want to change their return date and/or working pattern?

When an employee goes on maternity leave, her employer should inform her of her return date, on the basis of her full entitlement to 52 weeks maternity leave. The employee does not have to confirm at that point whether she wishes to take the full 52 weeks or if she intends to return at an earlier date. 

Returning Early

If she does decide that she wishes to return before the end of the 52 week period, there is a requirement to give the employer 8 weeks’ notice of her intention to return to work early. If the requisite notice is not given, the employer can postpone her return to work. Where the employer does exercise its right to postpone an employee’s return and the requisite notice has not been given, the employer will not be obliged to pay the employee if she returns earlier than planned. For many employers this will not be a problem and they will be happy to agree a shorter notice period, however, if an employer has arranged for fixed term maternity cover, they may not want to find themselves in a position where they have two people engaged to carry out one role.

Returning later

If an employee has originally stated that she will take less than the 52 week period and subsequently decides to come back later, she will still be required to give 8 weeks’ notice of her new intended return date. However, if the employee fails to do so, the employer’s rights will be quite limited as requiring an employee to return early from maternity leave against her wishes is likely to put the employee in a difficult position. If this is the case, the best advice is to try and negotiate a suitable return to work plan and date with the employee to suit both parties. The employer may also want to make the employee aware of the 8 week notice period in advance so that she can factor this in to childcare arrangements etc to allow her return to work to suit all involved.

Flexible Working Requests

Many employers are also conscious that employees returning from maternity leave may want to change their working arrangements in order to work around childcare commitments, and in most cases this can be agreed with the employer. An employee returning from maternity leave will be able to make a request to work flexibly on their return. Currently, the right to request flexible working only extends to those with childcare or caring responsibilities, however, the government plans to extend that right to all employees later on this year.

There is no requirement on employers to grant a request for flexible working, however, if they choose to refuse a request made under the statutory procedure, they will require to be able to rely on sound business reasons for not doing so. The statutory guidance sets out certain specified business grounds, including detrimental effect on ability to meet customer demand or inability to reorganise work or recruit additional staff. The current statutory procedure and timetable for considering requests is quite rigid and time consuming and will also be replaced later this year with a new duty on employers to act reasonably, within a reasonable period, with no set timetable. This should hopefully make it easier for employees and employers to reach an agreement on a flexible working arrangement in a more efficient manner.  However, employers may find themselves in receipt of more requests for flexible working once the right is extended to all employees.

 For more information on managing an employee’s return to work following maternity leave or in relation to flexible working requests more generally, please get in touch with Hayley or Hannah.

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