The right to work after maternity leave
What employers can offer to accommodate staff who have taken maternity leave and what their holiday entitlement is can be fraught with misunderstanding. This piece sets out your obligations as an employer and how staff need to communicate before they start family life.
When my employee started maternity leave, they said that they would return to work after their maternity pay had run out. They’ve now told me they’re coming back to work three months later
It’s a day-one right to take a full year (52 weeks) as maternity leave, of which 39 weeks would be paid as either maternity benefit or maternity allowance, depending on National Insurance contributions.
To qualify for either of these payments, an employee should inform their employer about the pregnancy 15 weeks before the due date. Additionally, the employee should confirm the expected week of childbirth and the date that they intend to start their maternity leave. If the employee wishes, maternity leave can start 11 weeks before the expected week of childbirth. Alternatively, they could work right up to the actual date of birth.
When an employer has been told about the pregnancy, they should write to the employee within 28 days to confirm their return-to-work date and, although many employees do return after the maternity pay is exhausted, the best and safest bet is always to assume that an employee is going to be away for a full year.
If an employee wishes to amend this date, then eight weeks’ notice should be given – unless both parties have agreed that less notice is needed.
My employee wants to take annual leave at the end of maternity leave. Do I have to agree?
A: Holiday entitlement continues to accrue while maternity leave is being taken. However, an employee cannot take annual leave at the same time as maternity leave.
Ideally, the employer and employee would discuss holiday entitlement as early as possible, so that all parties have clarity. It may be agreed that leave will be taken either before or after maternity leave to minimise disruption.
Another possibility could be that, following a return to work, an employee works on some of their usual working days and takes the rest as holiday until the accrued entitlement has been used up. This should be discussed in advance and is best done through agreement between the employer and employee.
My employee has mentioned ‘keeping in touch’ days. What are they?
A: An employee can work for up to 10 days without bringing maternity leave to an end, if agreed between the employee and employer. It could be used as a way of easing the employee back into work, perhaps for a training day or to attend meetings of a conference. It is important to remember that neither party can force the other to use this facility and both parties should agree the details and ensure there is clarity regarding payment.
My employee is returning to work in three weeks. I would like them to do a different job
A: If an employee has taken 26 weeks or less, they have the right to return to the same job and should benefit from any improved terms and conditions put in place while they were on maternity leave.
If the employee has taken more than 26 weeks maternity leave (Additional Maternity Leave), they have the right to return to the same job on the same terms, unless it is not reasonably practicable due to significant changes to the organisation. In that case, they have the right to return to another job that is both suitable and appropriate. A suitable job must be on terms no less favourable than the terms they enjoyed in their original job. For example, pay, benefits, holiday entitlement and seniority must be the same as their original job.
Michele Piertney is a collective conciliator and senior advisor at Acas, where she has worked across a variety of roles for nearly 10 years
She is an experienced trainer who has designed and delivered courses covering the full range of employment relations and employment law issues for a wide variety of private, public and third sector organisations
Michele helped develop the training that Acas offers around the impact of the menopause in the workplace and its online advice
Michele is a member of the CIPD and ITOL and the Manchester Industrial Relations Society