To manage a return to work from maternity leave well, it’s important to keep in occasional contact with your staff member throughout her leave and ensure you’ve put in place appropriate arrangements for her return. Arranging Keeping in Touch (KIT) days, where possible, can help; see our recent blog for more guidance on what KIT days are.
Before your employee returns to work from maternity leave, you’ll need to discuss matters like whether she will be returning to the exact same role, whether she will need additional training or re-induction, what her return dates will be, and whether you agree to any flexible working requests she has made. You should also review and/or conduct a health and safety risk assessment for her return to work.
This blog sets out the key matters to consider when managing a return to work from maternity leave and provides links to relevant template documents you may need to ensure a smooth transition.
Key matters to consider when you manage a return to work from maternity leave
To manage the return to work process, it’s sensible to keep in occasional contact with your employee throughout her leave. This helps to create a supportive atmosphere and allows you to maintain a dialogue with your employee as to when she is likely to return to work and what re-induction she might need. You may need to consider retraining your employee upon her return if her job involves technical skills and/or changes have been made to the way her role works. Arranging KIT days, where possible, can help; see our recent blog for guidance.
Particular matters you’ll need to discuss and arrange with your employee before her return are:
- the role she will be returning to;
- the exact dates of her return; and
- whether or not you can agree to a flexible working request, if she has made one.
You should also review your health and safety risk assessment to determine what risks you may have identified for new mothers, and take such steps as you can eliminate or reduce those risks. For further information on protecting the health and safety of new or expectant mothers, see Risks to pregnant women and new mothers and see Pregnancy and maternity: risk assessment for a template individual risk assessment you can use. You can also buy this risk assessment as part of the Pregnancy and maternity toolkit.
Managing the role your employee will return to
When you manage a return to work from maternity leave, you must ensure you’re aware of the laws around the role your employee is entitled to return to. If you breach these rules, she may be able to bring a legal claim against you for unfair dismissal and/or discrimination on the grounds of gender or maternity.
For example, if an employee takes only ordinary maternity leave (ie the first 26 weeks), she is entitled to return to the same job as she had when she left (ie the same seniority, pay rate, benefits, and terms of employment). This is the case even if she is away for more than 26 weeks in total due to her adding on accrued annual leave and/or parental leave of four weeks or less (in relation to the same child) after her ordinary maternity leave period. Although some level of variation in her role may be acceptable, you can’t significantly change her day-to-day duties or reduce the status she had enjoyed previously. The exception to this is where your employee’s job is made redundant during the course of her maternity leave, although you will still have to offer her an alternative job in this situation where one is available (and ensure that you have a genuine reason for the redundancy).
If your employee takes additional maternity leave (more than 26 weeks), you have more flexibility to offer her a different role if it’s not reasonably practicable for her to return to her old job.
You can find more guidance on when you’re allowed to make changes to your employee’s role on her return to work, and the circumstances in which you’re allowed to make an employee on maternity leave redundant, in our Q&A.
You should also make sure you have handled the issue of pay and promotions properly in relation to staff who have been on maternity leave. See Maternity leave and pay for further guidance.
Dealing with flexible working requests from employees returning from maternity leave
All employees who have at least 26 weeks of continuous service with you have the right to make a request for flexible working, which means that the majority of employees returning from maternity leave will have the right to do so. Note that employees only have the right to make a request once during a 12 month period. If you have received a formal flexible working request, you can use the Flexible working toolkit to guide you through the process of dealing with it.
If you receive a flexible working request from an employee returning from maternity leave, you have a duty to consider it carefully. If you don’t, this could lead to a legal claim for discrimination being brought against you. You should make a genuine effort to see whether your employee’s request could be accommodated, or if a compromise arrangement can be reached, even if it doesn’t initially seem feasible.
This doesn’t mean you have to agree to a flexible working request, and there are a number of factors that can be taken into consideration. For detailed information about how to deal with a flexible working request and what factors you can consider, see Flexible working requests. For a template flexible working policy, see Flexible working policy, which you can also create as part of an entire staff handbook using Staff handbook and policies.
Returning to work from maternity leave – notice of return dates
Returning to work early
If an employee wishes to return to work earlier than the end of her additional maternity leave period (or earlier than a return date she has previously indicated to you) she must give you at least eight weeks’ notice. Of course, if you are happy to accept less notice than is required then there is nothing to stop you from allowing her to return to work early.
For a template letter from the employee to you, see Employee notice of return from maternity leave. For a template letter from you to the employee following a notification, see Letter to employee confirming dates of return from maternity leave. You can also purchase these letters as part of the Pregnancy and maternity toolkit.
Returning to work later
If an employee has notified you of her return to work date in the past, but decides to change to a later date, she will need to give you at least eight weeks’ notice.
If your employee wants to stay off work longer than her 52-week entitlement, you may have to agree to this if she wants to take time immediately after her maternity leave as annual leave. Alternatively, or additionally, she may ask to take unpaid parental leave after her maternity leave, which as a general rule you should allow. See Parental leave for information about which members of staff are entitled to unpaid parental leave and the process you should follow if a staff member requests it.
If an employee resigns while on maternity leave, you should take certain steps to ensure that her notice is in writing and the correct payments have been made to her. See our Q&A for further guidance.
The content in this article is up to date at the date of publishing. The information provided is intended only for information purposes, and is not for the purpose of providing legal advice. Sparqa Legal’s Terms of Use apply.
Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.