Managing the return from maternity leave

All new mothers are entitled to return to work. This information shows you how to take a proactive approach to managing staff returning from maternity leave.

An employee returning to work after the first six months of leave, or Ordinary Maternity Leave is entitled to return to the same job she was doing before her maternity leave.
An employee who returns to work after the second six months of leave, or Additional Maternity Leave is also entitled to return to the same job, unless there is some reason why it is not reasonably practicable for her employer to take her back in her original job, in which case she is entitled to be offered suitable alternative work.
If an employee is made redundant while on Ordinary Maternity Leave or Additional Maternity Leave, she is entitled to be offered a suitable alternative vacancy.
Notwithstanding her absence on maternity leave, an employee must be consulted in relation to any proposed changes to her terms and conditions of employment or redundancy.
Employees who wish to vary their working patterns on return to work may make a Request For Flexible Working. It is a good idea to have discussed flexible working options with the employee before maternity leave and to have encouraged her to make her request in advance of her return to work, wherever possible.
It is a good idea to hold a “mini-induction” on the employee’s first day back. This is an opportunity to update her on changes which have occurred while she was away and to discuss any queries or concerns she may have.
An employer must not subject an employee to a detriment, dismiss her or select her for redundancy solely or mainly because she has taken maternity leave or availed herself of the benefit of the terms and conditions of employment to which she was entitled during that leave.

Notification and Notice

If the employee wishes to return to work having taken her full maternity leave entitlement, she does not need to provide notice of her return to work. Prior to maternity leave, the employer should have written to the employee informing her of the date when her full entitlement to maternity leave ends.

If the employee wishes to return to work early, she must give her employer at least 8 weeks notice of her new return date. If an employee does not give the correct notice, her employer can postpone her return to work until 8 weeks notice has been given. If the employer did not write to the employee prior to maternity leave to inform her of the relevant date, the employer cannot postpone the employee’s return to work. An employee’s return to work may not be postponed beyond the end of her maximum maternity leave entitlement.

An employee may not return to work before the end of her compulsory maternity leave. For more information, refer to the Maternity Leave and Pay section of this toolkit.

If an employee does not wish to return to work after her maternity leave, she should give notice to her employer in the normal way. She can serve her notice while on maternity leave.

Rights on Return to Work

After Ordinary Maternity Leave

An employee returning to work after the first six months of leave, or Ordinary Maternity Leave is entitled to return to the job in which she was employed before her absence. She is entitled to terms and conditions of employment not less favourable than those which would have applied if she had not been absent. She is entitled to benefit from any general improvements to the rate of pay (or other terms and conditions) which may have been introduced for her grade or class of work as if she had not been away.

After Additional Maternity Leave

An employee who returns to work after the second six months of leave, or Additional Maternity Leave is entitled to return to the same job on the same terms and conditions as if she had not been absent. She is entitled to benefit from any general improvements to the rate of pay (or other terms and conditions) which may have been introduced for her grade or class of work as if she had not been away.

If there is some reason why it is not reasonably practicable for her employer to take her back in her original job, an employee is entitled to be offered suitable alternative work.

The new job must be:

suitable and appropriate for her to do in the circumstances
on terms and conditions of employment which are no less favourable to her than if she had continued to be employed in her old job.

It is a good idea for an employer to consult with an employee in relation to any proposed changes, notwithstanding the employee’s absence on maternity leave. If the employer does not do so, it risks facing a constructive unfair dismissal claim. Depending on the circumstances, other claims may also be raised by the employee such as sex discrimination.

If a woman is given a different job on her return to work and this is partly or wholly due to her absence on maternity leave, this will be sex discrimination if the new job is less favourable than her previous job. A less favourable role could be one where, although the new job is technically equivalent to the old one and the job title is the same, her work is less interesting, she has less responsibility, her clients are changed so less commission is payable or she has to complete a new probationary period.

It is strongly recommended, if an employer does wish to alter an employee’s terms and conditions of employment, that the employer refer to the more detailed information referred to in the Further Information section of this topic and speaks with Acas.

Employees who wish to vary their working patterns on return to work from maternity leave may make a request for flexible working. See managing requests for flexible working for more information.

An employee’s return to work rights may differ if the employee takes further leave after taking maternity leave.

Redundancy During Maternity Leave

If an employee’s position is made redundant during Ordinary Maternity Leave or Additional Maternity Leave, she is entitled to be offered a suitable alternative vacancy, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer. The new contract must be offered before the end of the original contract and it must take effect immediately on the ending of the original contract.

The new contract must be such that:

the work to be done by the employee is both suitable and appropriate for her to do in the circumstances
the terms and conditions of her employment are not substantially less favourable to her than if she had continued to be employed under the original contract.

Employers should note that the employee has a right to be offered any suitable alternative job, not just offered the opportunity to apply for it.

If the employer offers the employee a suitable alternative vacancy and she unreasonably refuses it, she may forfeit her right to a redundancy payment.

The employee must be consulted where there is a potential redundancy situation and a fair procedure (taking into account any applicable statutory dispute resolution procedure) must be followed by the employer, notwithstanding the employee’s absence on maternity leave.

An employee must not be selected for redundancy for a reason connected to her pregnancy, the birth of her child or maternity leave. If the employer does not establish a fair reason for the employee’s dismissal, it may face an unfair dismissal claim, irrespective of the employee’s length of service. Depending on the circumstances, other claims may also be raised by the employee.

If an employee is to be dismissed by reason of redundancy, she should receive redundancy payment in the normal way. This means statutory redundancy pay and any applicable contractual redundancy pay. Any time spent by the employee on maternity leave, whether Ordinary Maternity Leave or Additional Maternity Leave, should be taken into account when assessing her length of service for the purpose of calculating her Statutory Redundancy Payment. The employee should be given the notice to which she is entitled under her contract of employment but will only receive notice pay in certain circumstances. See Notice pay during maternity leave in England and Wales or Scotland for more information. She must also be paid any outstanding holiday pay.

The employee should be paid her full Statutory Maternity Pay entitlement once she has qualified for it. She should continue to be paid Statutory Maternity Pay even if made redundant.

It is strongly recommended, if an employee’s position is to be made redundant, that the employer refer to the more detailed information referred to in the Further Information section of this topic and speaks with Acas.

Dismissal During Maternity Leave

If an employee is dismissed during maternity leave (including if she is dismissed by reason of redundancy), she must be provided with a written statement for the reasons for her dismissal, whether or not she requests such a statement.

An employee must not be dismissed because she has given birth. She must also not be dismissed because she has taken maternity leave, or because she has availed herself of any of the benefits of Ordinary Maternity Leave. If dismissed for such a reason, an employee may have an unfair dismissal claim. This applies irrespective of the employee’s length of service.

The employee should be paid her full Statutory Maternity Pay entitlement once she has qualified for it. She should continue to be paid Statutory Maternity Pay even if dismissed.

Breastfeeding

An employer has a duty to protect the health and safety of a breastfeeding employee and that of her baby. Preventing an employee from breastfeeding her baby may put the employee’s and the baby’s health at risk.

When an employer is informed in writing by an employee that she is breastfeeding, it should carry out a specific risk assessment and follow certain steps in order to remove the employee from any health and safety risk identified. For more information on health and safety and the steps to be taken by an employer, refer to the Health and Safety of New and Expectant Mothers at Work section of this toolkit.

Temporary alterations to the woman’s working conditions might include, for example, giving her breaks to express milk or allowing her to work shorter shifts.

If an employee’s work brings her into contact with dangerous substances, it is a good idea to ask her before she returns to work if she is breastfeeding so that the employer can take the appropriate steps to make the job safe before the employee returns to work.

Employers must provide suitable facilities for a breastfeeding employee to rest. Although not a legal requirement, employers are encouraged to provide a healthy and safe environment for nursing mothers to express and store milk. Toilets are not suitable for this purpose.

Preventing an employee from breastfeeding may constitute sex discrimination.

For more information on breastfeeding and to see a sample breastfeeding policy, refer to the Health and Safety of New and Expectant Mothers at Work section of this toolkit.

Relevant Legislation

Employment Rights Act 1996
Employment Act 2002
Work and Families Act 2006
The Employment Act 2002 (Dispute Resolution) Regulations 2004
Maternity and Parental Leave etc. Regulations 1999
Maternity and Parent Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2006
Sex Discrimination Act 1975
Statutory Maternity Pay (General) Regulations 1986
Statutory Maternity Pay, Social Security (Maternity Allowance) and Social Security (Overlapping Benefits) (Amendment) Regulations 2006

Please note that some of the legislation listed above has been amended since it originally came into force. You must ensure, therefore, that you refer to the most recent version.

How is Statutory Redundancy Pay calculated?

For information on how Statutory Redundancy Pay is calculated, click here.

To calculate the amount of Statutory Redundancy Pay owed to an employee. Any time spent by the employee on maternity leave, whether Ordinary Maternity Leave or Additional Maternity Leave, should be taken into account when assessing her length of service for the purpose of calculating her Statutory Redundancy Payment.