Maternity Discrimination

Returning to work after Maternity Leave

Returning to work after maternity leave can be a very uncertain time, particularly if you are uncertain as to your rights and the protection you have against suffering any form of detriment or to be discriminated against as a result of having been off work.

There are a number of key rights when you return to work. You have the right to return to the same job (or a suitable alternative), to request flexible working and protection from dismissal for any reason relating to pregnancy or maternity leave and if this can be shown it would be automatically unfair dismissal.

There are three different components to maternity leave and depending on which one you take it will have a bearing on the rights that you will acquire.

With compulsory maternity leave your employer must legally insist that you take the first two weeks on maternity leave or if you work in a factory this increases to four weeks.

Ordinary maternity is the first 26 weeks and additional maternity leave is the extra 26 weeks after ordinary maternity leave ends.

If you have taken compulsory or ordinary maternity leave or if you decide to return to work before the end of your ordinary leave then you have the right to return to the same job that you left. This means your employer must let you return to the same job, on the same terms and conditions as you enjoyed before you started your maternity leave.

The situation is different if you are returning after additional maternity leave in that whilst you are still entitled to return to work under the same terms and conditions it may not be to the precise job you were doing previously but this is only permitted if it is not reasonably practical for the employer to do so and would give your employer more flexibility as to which role you return to. Any new job may well be suitable and appropriate to you in view of your change in circumstances. However any new terms and conditions must not be less favorable than they would have been had you not been on maternity leave.

If you are not allowed to return to the same job on the same terms after ordinary maternity leave, or if you are not offered suitable alternative employment after your return from additional maternity leave, then you may have a claim for discrimination by reasons of pregnancy discrimination and maternity discrimination together with potentially a claim for unfair dismissal if you are dismissed.

If you are not dismissed but simply not allowed to return to the same job then you would have a claim for unlawful detriment.

If you are offered an alternative role that’s not the same as your original role when you return from ordinary maternity leave, or if you are offered a job that is not a suitable alternative when you return from additional maternity leave then you have a number of options.

 

You could either:-

Refuse to accept the job and resign, enabling you to potentially bring a claim for constructive dismissal.

Accept the new job and bring a claim for unlawful detriment and / or sex discrimination if the change in terms is due to your pregnancy or maternity leave.

Constructive dismissal claims must be made with three months less one day from the date of termination of the contract of employment. Any claims for discrimination must also be made within three months less one day from the last act of discrimination.