Kirsty Hunt from Watkins Solicitors offers expert advice for mums planning on returning to work after the birth of a new baby
Returning to work after a period of maternity leave can be somewhat daunting and quite frankly, a little bit scary. Leaving your new bundle of joy after a considerable amount of time off in exchange for office politics may leave you with mixed emotions; however, there are things you can do to make the transition that little bit easier and knowing your rights is a good place to start.
1. When do I have to return to work?
All pregnant employees are entitled to take up to 52 weeks (one year) of maternity leave, no matter how long you have worked for your employer. This is made up of 26 weeks ordinary maternity leave and 26 weeks additional maternity leave. You do not have to take the full 52 weeks, but it is compulsory that you take two weeks leave after your baby is born (four weeks if you work in a factory). You can return to work at any time after this period, but you cannot take more than 52 weeks. You must give your employer eight weeks’ notice of your return.
2. Can I change my return date once this is confirmed?
Yes! Once you have told your employer when you would like to return, you can still change your mind about your return date, providing you still give them eight weeks’ notice.
3. Keeping in touch days (KIT days)
You can help the transition of returning to work by having KIT days. These are optional days which you can choose to work during your period of maternity leave to remain in contact with your workplace and are often helpful if you need to attend a training session or team meeting, or if there is work that you can undertake, and this might help ease you back in once your maternity leave comes to an end.
You and your employer can agree up to 10 KIT days and you should be paid for each day. However, there is no obligation on the employer to offer these or for you to agree to them.
4. How long do I have to return to work for after maternity leave?
It is your decision if you choose not to return to work after your period of maternity leave. If you do not wish to return, you must resign and give your employer the required notice as set out in your contract of employment or otherwise provided for under statute. You may therefore wish to tie in your notice period with the end of your maternity leave. For example, if your maternity leave comes to an end on 12 August and you have a one month’s notice period, you should resign by no later than 12 July. This way you won’t have to go back to work!
You are not required to repay your statutory maternity pay in the event you choose to resign from your employment, whether this is during your maternity leave period or once you return to work. However, if you receive enhanced maternity pay (over and above statutory maternity pay), your employer may have a policy that requires you to return to work for a certain period if you do not wish to pay this back. It is useful to check your contract of employment and any maternity policies to find out whether this is the case as this may affect when you choose to resign.
5. Am I entitled to my annual leave?
During your maternity leave period, you should continue to receive any benefits you are entitled to. You will also continue to accrue annual leave which can either be taken following your period of maternity leave (if agreed by your employer) or paid to you if you are unable to take this or choose to resign.
6. Am I entitled to the same job?
When returning from a period of ordinary maternity leave, you are entitled to return to the same job with the same terms and conditions. However, this might not be practical for you anymore (due to working hours and childcare commitments) so you may need to request some changes (this is discussed further below).
After returning from a period of additional maternity leave, whilst you still have the right to return to the same job, this may not always be the case if your employer can demonstrate that it was not reasonably practicable for them to have kept your job open. In this case, you do have the right to be offered a similar job with terms and conditions that are no less favourable to your previous role.
7. Can I be made redundant?
Sadly, your job can still be made redundant whilst you are off on maternity leave or once you return from leave and this is not unlawful providing there is a genuine redundancy situation and a fair process has been followed.
If your role does become redundant, you should be offered any suitable alternative roles that are available. If this happens during your maternity leave period, you should be given priority over other employees. If there are no suitable alternative roles and your redundancy is confirmed, you will be entitled to your statutory redundancy pay (or any enhanced redundancy payment that be set out in your employment contract).
8. Can I request flexible working?
Once you plan to go back to work, it is helpful to start thinking about childcare arrangements in advance of your return date. You may have a relative to help look after your child or you may consider viewing some local nurseries. You can also consider making a request for flexible working.
If you have worked for your employer for at least 26 weeks and you have not made a previous flexible working application within the last 12 months, you have the right to make this request. This could be in relation to home working, part time hours, term-time working or even job sharing. Whatever the request, your employer must take it seriously and can only refuse the request if there are sufficient business reasons.
You should make your request in writing and include details about the revised working pattern you wish to undertake, when you would like to start, how this may affect the business and how the impact of that could be dealt with. Your employer must deal with your request in a reasonable manner and notify you of its decision within 3 months unless otherwise agreed.
As these types of requests can take some time, it is advisable to start thinking about this in advance of your return date and to put this request in as soon as possible.
9. What if I am still breastfeeding?
Going back to work may be the first time you have separated from your baby for long periods and if you are breastfeeding this can be a difficult time for you and your baby. Be assured, however, that you can continue to breastfeed even when you go back to work.
If there is a workplace nursery or you have childcare close to your place of work, you may be able to visit your baby during the day and breastfeed normally. If this is not possible, you may consider expressing your breast milk so that someone else can feed your baby whilst you are at work or making a request for flexible working, so you can work around your breastfeeding needs. In the alternative, you may wish to consider combination feeding and bottle feeding your child only during the time you are at work.
Whatever you decide, you should let your employer know if you are continuing to breastfeed. As a breastfeeding mother, your employer must provide you with a suitable space to rest and ensure any health and safety risks are managed by undertaking a risk assessment.
There are also recommended guidelines that access be given to a private and clean space where you can express milk; that the use of secure and clean refrigerators are available for storing expressed milk; that there are facilities for washing, sterilising and storing receptacles; and that time off without loss of pay or fear of penalty be given to express milk or breastfeed.
10. What if I have been treated unfairly because of my pregnancy or maternity leave or because of my childcare commitments when I return to work?
If you feel you are being treated unfairly either because of your pregnancy, your period of maternity leave or because you are now a mum with childcare commitments, you should seek legal advice immediately. You may have a claim for pregnancy and maternity discrimination or sex discrimination and you should seek advice about the options available to you.
It is always advisable to approach your employer about any concerns informally in the first instance but if you are not taken seriously, you do have the right to raise a formal grievance. This should be done in writing and your employer will have to investigate this. As a last resort, you may wish to contact ACAS and enter into Early Conciliation. This is a mandatory process if you are considering making a claim against your employer and there are very strict time limits for these types of claims.
For discrimination claims, you will have 3 months less one day from the date the act of the discrimination took place, or in a series of acts, the last act in that series to enter into ACAS Early Conciliation.
You are only protected from pregnancy and maternity discrimination during the relevant period (i.e. when you are either pregnant or during your period of maternity leave).