With Peacock & Co Associate Solicitor Clare Chappell
Maternity leave can be many things – wonderful, fraught, amazing, isolating, life-changing inconvenient, to name but a few adjectives that might be used by anyone impacted by an employee’s absence on maternity leave. Navigating the legal rights and obligations that apply to employers and employees around pregnancy and maternity leave can be a minefield.
Many employees will go off on maternity leave, return to their jobs after a year off, during which time a temp has been covering, and carry on as before, with no real changes to their role in the organisation.
But what happens where an employer wants to make changes to the organisation structure that will impact on the employee’s role? What happens if the employee wants to change her working pattern? Can either party expect to get their ideal solution?
Back to basics: if an employee has only taken Ordinary Maternity Leave (OML), i.e. up to 26 weeks’ maternity leave, she can return to her own job. If she has taken any Additional Maternity Leave (AML), i.e. 26 to 52 weeks’ maternity leave, she can still return to her own job, unless it is “not reasonably practicable” to do so.
From the employee’s perspective, she might want to change her job by applying to work flexibly, maybe part time, shorter hours, or condensed hours – anything that is not to the employer’s standard pattern. Whilst all employees with more than 26 weeks’ service are entitled to apply for flexible working, employers are not obliged to grant the request. The employee must put the request in writing, and employers must deal with it in a reasonable manner and confirm the decision to the employee within three months. There are specified reasons to refuse a request, such as a detrimental impact on quality or performance, or the burden of additional costs. Take care though: employees can claim in the Employment Tribunals if an employer fails to deal with their request properly, or if the employer’s decision is discriminatory.
From the employer’s perspective, fundamental changes may be taking place at the organisation during the employee’s absence on maternity leave. Having a baby is undoubtedly life changing for the parents, but organisations are not expected to stand still. There is a fundamental difference between a legitimate need to reorganise and cut costs by making redundancies, which (after due consultation) happen to include an employee on maternity leave; and a targeted effort to remove or side-line an employee, because it is assumed that now she has had a baby she won’t be as devoted to work. A genuine redundancy situation would generally make it “not reasonably practicable” for an employee to return to her job.
It is not impossible to fairly dismiss a woman who is pregnant or on maternity leave; it is however, necessary to take care, be aware of the protections such employees benefit from, and to be sure that there are fair, objective, commercial and non-discriminatory reasons for doing so.
With a little thought, planning, legal advice, and communication, it should be possible to overcome most issues, in order to get to a solution that works for both employer and employee. That might be a flexible working arrangement that gets the job done, retains the employee’s years of built up knowledge and intangible value to the employer, whilst enabling the employee to collect her child from nursery. Or, it might be a fair redundancy, where the employee’s maternity leave was merely coincidental. Perhaps it is somewhere in between, and the departure is eased with a compensation payment under a settlement agreement. As with all employment matters, each situation is unique; obtaining early legal advice can be crucial.
If you would like to discuss any of the issues in this article, or any other Employment Law matters, please contact Clare Chappell at firstname.lastname@example.org or on 020 8944 5290.