Returning to work after maybe a year or more out of the workplace on maternity leave can be daunting. That’s why it is particularly important to understand what your legal rights and entitlements are regarding holidays, promotions and pay, prior to heading back to work.
The right to return to the same job after maternity leave
Perhaps the most important right employees returning to work from maternity leave have is the right to return to their old job. An employer cannot decide to keep on anyone else who was employed to cover the maternity leave in the returning woman’s role – it is her job and she is legally entitled to return to it.
The only exception to this position is where this is not reasonably practicable for example, if a restructure has taken place in her absence and the original job no longer exists following her return. However, if this is the case, an employer is obliged to provide a a comparable job which is suitable for her, on the same terms and conditions such as pay and responsibility, as the role that existed prior to taking leave.
The right to take accrued holiday
While an employee is on maternity leave, she continues to accrue all her contractual holiday entitlement as though she were still working. Because a worker cannot mix different types of leave, someone who took 12 months maternity leave would potentially have a year’s worth of accrued holiday at the end of her leave.
Often, an employer will require employees to take all of their accrued annual leave at the end of their maternity leave (or before they go) as this is less disruptive. It can also be more financially beneficial to an employee who has had a period of unpaid of time off.
Some employers enforce a rule that all holiday has to be taken in the same working year in which it accrues, with no carry over allowed. However, if it is not possible for a woman to comply with such a rule due to being on maternity leave, then the rule has to be disapplied, meaning she has the right to carry over her holiday entitlement to a subsequent year.
Improved terms and conditions for maternity leave
An employee who has been absent on maternity leave has the right to enjoy all of the terms and conditions they would have had if they were still working. So, for example, any general pay rise which was implemented while she wasn’t working also has to be applied to her upon her return.
It may also be necessary to recalculate any earnings related statutory maternity pay (SMP) to take account of any pay rise granted before the end of period of leave. This means that an employee may be entitled to receive a “top-up” payment from their employer during maternity leave.
A woman must also be treated as if she had not been absent from work for the purposes of accruing seniority or entitlement to potential benefits. For example, just because a woman has not been working, does not mean that she is not entitled to a pay increment linked to her years of service which would have applied had she still been at work.
Protection against unfair dismissal
A woman who is dismissed from work following her return from maternity leave for a reason related to pregnancy, maternity or because she took leave will be automatically count as an unfair dismissal and the offended party will be able to bring a claim against her employer, regardless of length of service.
While a woman is on maternity leave, her employer must give her preferential treatment in a redundancy situation. This means that she must be offered suitable alternative positions ahead of anyone else. This protection currently ends once she returns to work after maternity leave. However, any service which accrued while she was off work must be counted by an employer and any maternity related absence cannot be considered for the purposes of a redundancy selection process.
Protection against unfavourable treatment
Under the Equality Act 2010, employees are protected against unfavourable treatment as a result of a pregnancy (of hers) and maternity. This includes potential unfavourable treatment because she has taken maternity leave. Whilst there must be a provable link between the treatment and the reason for it, this is potentially a wide protection as there is no need to compare treatment with anyone else (as there is in other direct discrimination cases) and the protection is potentially unlimited in time.
For more information on a woman’s employee rights regarding pregnancy and maternity, please see our article debunking common myths surrounding the topic.