As many as 390,000 mothers a year could be experiencing discrimination during pregnancy, maternity leave and/or on return from maternity leave. It’s important to know what your employee rights are, and how to enforce them to make sure you aren’t missing out as a new parent.
Right to return to the same job
If you have taken up to six months maternity leave, you have the right to return to the same job, on the same terms (or terms that are as favourable as they would have been if you had not taken maternity leave).
If you have taken additional maternity leave (up to a further six months), you have the right to return to the same job, if reasonably practicable. If it isn’t reasonably practicable, then your employer can offer you a similar job, if it is suitable and appropriate, and if the terms and conditions are as favourable as they would have been if you had not taken maternity leave.
If you aren’t allowed to return to the same job (or to a similar job in the circumstances above), you may be able to bring claims in the Employment Tribunal for unfair dismissal and discrimination.
Right to breastfeed/express milk at work
There isn’t a right to paid breaks at work for breastfeeding or expressing milk, nor are employers required to provide facilities for breastfeeding or expressing milk. However, employers must provide somewhere suitable for breastfeeding mothers to rest.
It is also recommended that they provide a suitable place for breastfeeding mothers to express milk (this shouldn’t be the toilets) and somewhere suitable to store milk (such as a secure, clean fridge).
If you tell your employer (in writing) that you are breastfeeding, then they must conduct a specific risk assessment of your situation. This will include an assessment as to whether the work you do gives rise to a risk to your health or that of your baby and if that risk arises from things such as working hours, travelling, stress.
Where possible, your employer should remove the risk. If it that’s not possible, then they must alter your working conditions and/or hours of work if reasonable. This might involve extra breaks or allowing you to alter your start and finish times.
If it’s not possible to avoid the risk in this way, then your employer must consider whether there is any suitable alternative employment, and must offer it to you if there is. If there is no reasonable way of avoiding the risk and no suitable alternative employment, then your employer must suspend you on full pay for as long as necessary to avoid the risk so that you can continue to breastfeed.
If your employer fails to comply with its duties, then you may be able to bring claims in the Employment Tribunal for discrimination.
Right to request flexible working after maternity leave
If you have worked for your employer for at least six months, you have the right to make a flexible working request. This could be a change to the number of hours that you work, the times that you work or where you work.
Your employer doesn’t have to grant your request, but they can only decline your request on certain specified grounds, and they must deal with your request in a reasonable manner (usually within three months, unless you have agreed an extension).
In addition, if your employer refuses and employee’s flexible working request, and cannot show that its decision is a reasonably necessary way of achieving a legitimate business need, then this may amount to indirect sex discrimination
Right to take holiday
As you cannot take annual leave at the same time as maternity leave, your holiday entitlement continues to build up whilst you are on maternity leave.
It’s a good idea to talk to your employer and agree the arrangements for taking your holiday in good time, for example whether you will take holiday before going on maternity leave or at the end of your maternity leave.
If you haven’t been able to take your annual leave in the current holiday year due to being on maternity leave, then you are entitled to carry it over to the next holiday year.
Right to a pay rise
You are entitled to pay rises which you would have received if you had not been on maternity leave. You may also be entitled to have your maternity pay recalculated to take the pay rise into account.
What does the future hold for employees returning after maternity leave?
Currently, in a redundancy situation, women on maternity leave must be offered a suitable alternative vacancy (if there is one) over other employees. In response to a consultation launched in 2019, the government has said it will extend the current redundancy protection period so that it starts from the point an employee tells her employer that she is pregnant and lasts for six months once her maternity leave is finished. However, it is not yet known when these changes will happen.
There have also been calls for the time limit for bringing discrimination claims in the Employment Tribunal to be extended to six months for pregnant women or new parents. Currently, claims for discrimination in the Employment Tribunal must be brought within three months. The government launched a consultation last summer which looked at extending time limits for discrimination claims, however, it is yet to publish its response.
If you would like to know more about your employment rights during maternity leave, or on return from maternity leave, talk to our employment law specialists today. We’ll help you figure out the best way forward.