An employee who is maternity leave has a great deal of statutory protection and we always proceed with caution before doing anything that could be seen as prejudicial.
Considerations fall into several areas:
- the employee’s contractual rights as per her contract of employment
- her rights under the Maternity & Parental Leave Regulations 1999
- her rights under the Equality Act 2010
- her rights under the Employment Rights Act 1996
- her rights under the Working Time Regulations 1998
Right to return
An employee who has taken only Ordinary Maternity Leave (i.e. > 26 weeks) is entitled to return to ‘the same job in which she was employed before her absence’. See MAPL Reg 18 (1).
Her terms of employment must be the same as, or not less favourable than, they would have been had she not been absent on maternity leave.
However, she is entitled to benefit from any improvements as if she had not been on maternity leave (e.g. pay rises).
An employee who has taken Additional Maternity Leave (i.e. 26 weeks > 52 weeks) is also entitled to return to the same job, unless it is ‘not reasonably practicable’ for her to return to this job.
In this context ‘not reasonably practicable’ means there are genuine and supportable business reasons why the employee cannot return. The employer must also have addressed its mind to the feasibility of allowing the employee to return to her old job. A preference that someone else perform the role is not sufficient.
If it is not reasonably practicable to allow the employee to return to her old job, she has the right to return to a suitable alternative job. See MAPL Reg 18 (2).
Suitable alternative means:
- the work to be done is appropriate for her in the circumstances
- the terms and conditions (i.e. pay, work location, hours, etc) are no less favourable than they would have been had she not been absent
Redundancy during maternity leave
An employee whose job becomes redundant whilst she is on maternity leave has the right to be consulted about potential redundancy as if she was not on maternity leave. This is the right to procedural fairness under S. 98 (4) Employment Rights Act 1996.
A failure to consult with an employee because she is on maternity leave is likely to constitute sex discrimination under S. 18 Equality Act 2010.
If a redundancy situation arises during an employee’s maternity leave and it is not possible for the employer to continue to employer her under her existing contract, then the employee is entitled to be offered any suitable alternative vacancy.
The offer must involve redeployment immediately after her existing contract ends.
This right requires employees on maternity leave to be treated more favourably than other employees who are at risk of redundancy. If the employer does not comply with this requirement any dismissal will be automatically unfair under S. 99 Employment Rights Act 1996 and Reg 20 (1) (b) MAPL.
In this situation ‘suitable’ – when considering terms and conditions – means that the capacity and place in which she is to be employed, and the other terms and conditions of her employment, are not substantially less favourable than if she had continued in her old job. See Reg 10 (3) (b) MAPL.
Contractual rights
It is worth remembering that an employee’s contract of employment may not ordinarily be varied without their express consent.
Even where a contract reserves a right to change its terms, if this right is invoked for reasons that relate to maternity leave this will be unlawful discrimination and a breach of trust and confidence (justifying constructive dismissal).
Holiday rights
An employee who is on maternity leave continues to accrue her right to paid annual leave as if she had been at work.
This means that she will be entitled to request annual leave at the end of her period of maternity leave.
Leave that would ordinarily have been ‘lost’ because it was not taken in the relevant holiday year, can be carried forward to the holiday year in which the employee returns to work.
Any termination to the employee’s employment will engage her right to be paid in lieu of all accrued annual leave (as normal). See Reg 14 Working Time Regs 1998.
Developments
The Maternity and Parental Leave etc Regulations 1999 provides that, if a woman on maternity leave is selected for redundancy, she must be given priority over other redundant employees when the employer offers suitable alternative employment.
This right is soon to be extended to women who have returned from maternity leave in the previous six months, not just those who are currently on maternity leave.
The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will come into force at the end of the period of two months beginning with the day on which the Act was passed. The version of the Bill published on 6 February 2023 anticipates that the Secretary of State will, by regulations, make provision to implement the new redundancy protections.