It is important for both employers and employees to know their respective rights in relation to maternity leave. Ignorance could lead to confusion, misunderstandings, discrimination and unfair dismissal claims or employees not receiving their entitlements.
It may seem obvious but maternity leave is the period of time pregnant employees are allowed off work pre and post the birth. Employees taking maternity leave are entitled to take up to 52 weeks’ maternity leave. This time consists of Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML). OML is the first 26 weeks and AML is the following 26 weeks. There is no requirement to take this time off – however – in most circumstances a minimum of 2 weeks’ leave must be taken following birth. The difference between OML and AML is the return to work rights. During OML, employees returning to work have the right to return to the role they left. During AML employees have the right to return to the same role, unless it is no longer available, in which case a suitable alternative should be offered with conditions that are no less favourable than what they were before starting maternity leave.
So, what happens if you want to make an employee redundant whilst they are on maternity leave? There is nothing to prevent an employer making an employee redundant whilst they are on maternity leave despite the myth that employers cannot do so - period. However it is not an easy thing to do and there are great risks. To start with, a mother on maternity leave cannot be made redundant because they are pregnant or on maternity leave; this would give rise to discrimination and/or unfair dismissal. A suitable process must be followed, which involves ensuring that the redundancy is genuine and necessary, ensuring you consult the employee and keep in touch with them, establishing non-discriminatory or maternity leave related criteria and you consider all alternative work. Selection criteria should not include any criteria which would be unfair for an employee on maternity leave. Criteria should be assessed based on the skills and qualities that the employee demonstrated when they were working pre-maternity leave; it would be unfair to apply criteria when they were on maternity leave as this would likely generate lower scores. Further, ACAS provides that good working practice would be to ensure that women on maternity leave are given preference over other workers to suitable alternative employment. In effect this gives rise to the sound principle of maternity leavers/returners “trumping” other employees, if there is a selection process to be undertaken for other alternatives. There should, in effect, be no need to compel them to apply for the alternative employment, this should be automatically offered.
If the employee qualifies for Statutory Maternity Pay (SMP) for 39 weeks and is made redundant before going on maternity leave but after the beginning of the 15th week before the baby is due, employers will need to pay SMP. An employee made redundant during OML or AML is entitled to redundancy pay calculated based on pre-maternity leave pay, as if they were not on maternity leave.
As well as knowing how to treat employees when they are on maternity leave, it is equally important to know how to manage employees on their return to work. Understanding Society reported that fewer than one-in-five of all new mothers and 29% of first-time mothers return to full-time work in the first three years after maternity leave. Flexible working, providing the employee has 26 weeks’ continuous service, can be requested for any reason. The employer must take a request seriously, deal with it formally under the rules relating to the right to request flexible working in a reasonable manner and must notify the employee of the outcome within 3 months. A request can only be refused by an employer on the following grounds (as per Section 80G Employment Rights Act 1996):
- If there will be a burden on additional costs;
- If the flexible working will have a detrimental effect on the ability to meet customer demand;
- If there would be an inability to re-organise work among existing staff;
- If the company will be unable to recruit additional staff to cover the time off;
- If flexible working would cause a detrimental impact to the employees performance;
- If there would be a detrimental impact in quality;
- If there would be an insufficiency of work during the period the employee proposes to work; and/or
- If there are any planned structural changes.
It is important to note that unjustified refusal of flexible working could amount to indirect discrimination. It is typical for women to take the majority of childcare responsibilities on and if employers unreasonably prevent a woman carrying out this (i.e. by not letting her work flexibly to look after her child) they may be indirectly discriminated against sex which is unlawful. This was demonstrated by a recent case involving a woman who requested flexible hours. She was awarded £185,000 by an employment tribunal on the grounds of indirect sex discrimination. Her employer did not take the request for flexible working seriously, she was not given an opportunity to negotiate with the company and, as a result, she felt the need to resign to enable her to be available for her child care commitments. This shows how aware employers need to be of their employees’ needs and value to business. It is not about giving all employees the same contractual terms, rather assessing individual needs and providing what is suitable and fair.
If you have any questions regarding maternity leave, redundancy or flexible working then our team of employment lawyers would be happy to help. Please get in touch at email@example.com.