In our latest alert, Senior Partner Sarah Chilton and Associate Naomi Latham set out some frequently asked questions and answers about employee rights to return after maternity leave and entitlements to time off in certain circumstances.
It is important to note that the points discussed in this alert apply to employees and do not go into detail in relation to many issues, for example, the rules relating to requesting and refusal of holiday requests or remedies should an employer breach any of these rights. Before taking any action that may put employment at risk you should try to obtain specialist advice. Workers, self-employed, freelancers, and others will have different rights in many circumstances.
It is essential that you consult your employer’s maternity and parental leave policy, as many policies will provide more than the statutory minimum rights set out here and often have specific procedures applicable to the organisation. If an employer’s policy seeks to reduce or curtail these rights, it may not be lawful.
How long can my maternity leave last?
All employees are entitled to 52 weeks of maternity leave. How long you take determines your rights on your return. Irrespective of how long your leave is, you cannot be treated unfavourably because you take maternity leave, for example, you cannot be bullied, demoted, or not included in formal workplace consultations because you are on leave.
When returning it is relevant that maternity leave is split into two parts – Ordinary (the first 26 weeks/6 months) (“OML”) and Additional (the second 26 weeks/6 months) (“AML”). Whether you return from Ordinary or Additional Maternity Leave is relevant for your rights on return.
During maternity leave, employees (not workers or self-employed/freelancers) can take up to 10 paid Keeping In Touch (KIT) days without bringing their maternity leave (whether it be OML or AML) to an end.
I want to return before one year, or after one year – what do I have to do?
When returning you need to give your employer notice if you want to return early – that is before 52 weeks – the legal requirement is at least 8 weeks’ notice of return, but workplace policy may have specific rules relevant to your own employer which shorten this requirement or remove it altogether.
To return later, after maternity leave has ended, you would need to:
- Agree this with your employer. The ability to agree this with your employer may be given in your contract of employment or can be agreed on an ad hoc basis.
- Take parental leave (see below for more information on this type of leave, which is different to “shared parental leave”).
- Take annual leave subject to your remaining entitlement.
- If you are unwell and unable to work, take sick leave in accordance with your employer’s sickness absence procedure.
What are my rights to return to my role after maternity leave?
If you return after OML, you are entitled to return to your existing role unless that role has been made redundant (see below for more on redundancy).
If you return after AML (or after OML plus more than 4 weeks of parental leave – annual leave does not count as, technically, you have returned to work and are on holiday, rather than parental leave) you are entitled to return to your existing role, but your employer has some limited flexibility in circumstances where it is not reasonably practicable to return to the same role i.e. when there has been a reorganisation. Most people will be entitled to return to the same job. If your employer is entitled to some flexibility, then the new role must:
- Be on no less favourable terms – i.e., pay/benefits/hours.
- The job must be suitable and appropriate i.e., same status, skills, expertise.
Can my employer keep my maternity cover and offer me a different role if I have taken longer than 26 weeks maternity leave?
Whilst this would depend on specific circumstances, this is unlikely based on the current law and you should be able to return to the same job which you had before maternity leave, and any maternity cover should not continue in your job.
Can I be made redundant on maternity leave?
You can be made redundant on maternity leave but you need to be given priority when the business offers alternative roles to those employees being made redundant, over colleagues who are not on maternity leave. It is also important that you are consulted in relation to the redundancy process while on maternity leave otherwise, you may have employment claims against your employer.
What about my holiday entitlement?
Employees on maternity leave continue to accrue their statutory annual leave entitlement (that is the first 28 days of holiday per year (for a full-time employee – this is prorated for part-time workers) – and where the employer’s policy permits, their contractual holidays, too, which are often over and above 28 days/5.6 weeks statutory minimum). In practice, this means that most employees returning have significant leave accrued and, in many cases, also the leave from the year in which they commenced their maternity leave which they did not use. It can be useful to take this at the end of maternity leave and, therefore, you would get paid for the last period of time off or a little each week as you return. You will need your employer’s agreement to take holiday and likely need to comply with your employer’s policies on annual leave requests.
What are my rights to reduce my working hours when I return?
Flexible working requests
All employees with 26 weeks or more continuous service are entitled to request flexible working. However, it is important to note that it is a right to request and not a right to have that request granted (currently there are many campaigns for a right to work flexibly/from home for everyone post-Covid pandemic).
You can make either a formal or an informal request for flexible working. You should check your employer’s policy on this as many have a process for making such requests, and this alert sets out the minimum requirements. A formal request is made in writing and the employer must respond in accordance with the law and deal with the flexible working request in a reasonable manner. There are no specific rules about how to make an informal request.
An employee is only entitled to make one formal request per year so it is worth considering making an informal request in the first instance and thinking about whether you might want to make further requests in the near future (in some cases, your employer’s policy may allow for more than one request per year).
The request can be to vary hours of work, but you can also request a change of location or a hybrid working setup or other forms of flexibility to your working pattern.
When making a formal request:
- It must be made in writing.
- The employer has 3 months to respond unless extended by agreement with you (including discussing this with you and giving you their response).
- The employer should discuss the request with the employee and deal with the request reasonably.
- The employer can only refuse the request for one of 8 specific reasons, which include:
- The burden of additional costs.
- Detrimental effect on ability to meet customer demand.
- Inability to reorganise work among existing staff.
- Inability to recruit additional staff.
- Detrimental impact on quality.
- Detrimental impact on performance.
- Insufficiency of work during the periods the employee proposes to work.
- Planned structural changes.
In practice, it is not too difficult for most employers to justify a refusal in many cases, and this will often be on the basis of points ii or iii above.
For this reason, some employees might need to consider if a refusal of a request is otherwise unlawful based on discrimination law – see below for further details.
Request to work part-time
Irrespective of the position on flexible working or length of service of an employee, a refusal to allow part-time work for a mother returning to work will, in some circumstances, amount to sex discrimination. This is because women are statistically more likely than men to have greater childcare responsibilities and, therefore, to request part-time working. An employer seeking to refuse a request would need to justify that, reasons include, for example, meeting client needs, but this would only be acceptable if there was no other reasonable/proportionate way to meet those needs which did not involve, for example, requiring you to work full-time.
Breastfeeding on return to work
Breastfeeding mothers are entitled to suitable facilities to rest (including facilities to lie down) and take meal breaks (toilets are not suitable).
There are no specific rights enabling mothers to breastfeed or express milk at work, or to have facilities to do so. There is guidance that asks employers to provide a private and clean environment (other than toilets) to express milk and to store it, but this does not constitute a legal right to these facilities. However, a breastfeeding woman returning to work is protected by discrimination legislation and this means that treating a woman less favourably than a colleague because she is breastfeeding may be discrimination and so, in some situations, unfair treatment of breastfeeding women and/or failing to provide adequate facilities may breach discrimination law.
What can I do if my childcare is unavailable?
If you cannot go to work because you have no childcare, you are not entitled to paid time off, but you may be entitled to unpaid time off and you may also agree on alternative working arrangements with your employer.
If you are an employee, you could take unpaid leave under one of two types of statutory leave – time off for dependents leave and parental leave.
Time off for dependents leave
This allows you to take a reasonable period of unpaid leave where childcare arrangements are unexpectedly disrupted, such as when a school is closed, a caregiver is unexpectedly unwell, or your child is unexpectedly unwell. It is not intended to cover long periods of leave, such as several weeks or months, however, the disruption does not necessarily have to be sudden or an unexpected disruption you know about for a week or so in advance, for example, to still fall within the criteria. However, the more notice you have of the issue, the less likely you will be able to use this leave. The purpose of the leave is to enable you to make emergency arrangements for care rather than to provide the care for the whole period of disruption. For example, if it is reasonable to find alternative childcare in a few days, an employer might expect you back at work before the usual childcare is back up and running. It can be hard/impossible to find emergency care in such a short period. You do not need to have worked for your employer for any length of time to use this type of leave.
Parental leave may be available provided you have one year’s service with your employer. This leave is available to parents who have parental responsibility for a child and to others who have parental responsibility for a child. Parental leave entitles each parent to up to 18 weeks of unpaid leave for each child during the first 18 years of each child’s life. For example, if there are two parents and two children, each parent has 36 weeks’ leave. You can take up to 4 weeks per child per year (some employers will allow longer). You may need to give your employer 3 weeks’ notice before taking the leave unless the employer agrees to less notice (this is not intended for emergency issues, but some employers may allow you to use it as such, with their agreement). Your employer may postpone the parental leave by up to six months to avoid undue operational disruption. Your employer can also insist that you use it for a minimum of one week at a time. Your rights to return to the same job may vary if the length of any period of continuous leave is over 4 weeks. You should discuss the length of leave and arrangements for your return with your employer.
You could ask to use your annual leave which would mean you would get paid at your usual rate of pay, for the time taken as leave. This would use up your overall holiday entitlement and requires your employer’s agreement.
If childcare will be impacted for longer than a few days or a week, you could ask for flexible working, either as a formal or informal request if, for example, it would assist you to vary the hours or days of your work on a temporary basis. You could also ask for other forms of unpaid leave. Your employer does not have to agree to the request. Please note the additional information on flexible working above
Some employers may have additional types of leave available, and you should check your staff handbook/policies.
What if my child is sick and cannot attend childcare?
You could use time off for dependants leave or request parental leave or annual leave, but these two latter types of leave need your employer’s agreement for when you can take them and so may be refused in an urgent situation. You can also agree on an alternative arrangement with your employer, such as making up time or doing your work when your child sleeps and/or in the evening but, for most employees, this is not an entitlement (it is possible some contracts will provide for very flexible working arrangements, but this is not the norm).
What else can I use parental leave for?
Parental leave does not only have to be used in the circumstances outlined above. It is available to parents and others who have parental responsibility for a child, and you do not need a reason to take this leave, but you do need to comply with the minimum notice requirements set out above, and, usually, your employer’s own policy (as long as it does not infringe upon your legal right to take the leave). Parental leave must be used for the purpose of caring for a child, which can include but is not limited to spending time with children, spending time with children and extended family, or dealing with childcare arrangements or changes. Employees often use this leave to cover school holidays if they have run out of holiday, however, it is not often used as it is unpaid. It is also sometimes taken to extend paternity or maternity leave.
If you are a senior executive, HR advisor or multinational employer and would like to discuss the matters raised in this alert, or the particular circumstances of your situation, your rights, responsibilities and potential liabilities, please contact our Senior Partner, Sarah Chilton, and Associate Naomi Latham, both of whom specialise in employment and partnership issues for senior executives, multinational employers, partnerships, LLP, partners and LLP members.