How can employers manage employees returning from maternity leave to make sure they feel fully welcomed back to work? HR consultant Kate Marchant outlines what employers should do to make sure the legal and HR bases are covered.
The law surrounding pregnant employees and maternity leave can be complex. Recently, there have been a number of tribunal outcomes favouring the employee with some quite considerable compensation awards. All of this suggests many employers are not aware of (or perhaps ignore) an employee’s legal rights in this regard.
What are a pregnant employee’s rights?
Focussing on returning employees, lets remind ourselves of some of their rights:
- Pregnancy and maternity are protected characteristics under the equality act 2010
- Pregnant employees and those on maternity leave have significant employment protections
- After additional maternity leave, an employee is entitled to return to the same job or another suitable job on terms and conditions no less favourable than those which applied previously
- Employees may agree to do up to 10 days’ work – known as Keeping in Touch (KIT) days – but there is no obligation for employer to offer and no obligation for employee to accept.
The above outlines some of the legal rights; however, let’s remember behind all the legalities is a human being who is likely to be feeling pretty overwhelmed and daunted about returning after such a lengthy absence. Not only this, but they will also be leaving a baby they have likely been with 24/7 for many months, which will likely heighten their feelings around returning.
How can employers support an employee returning from maternity leave?
The good news is there are many things that can be done to welcome your employee back and facilitate a smooth and happy return. Here are a few practical ideas:
Make use of Keeping in Touch (KIT) days
If both parties agree, KIT days can be a great way to help the reintroduce the employee to the workplace and can help to reduce any feelings of overwhelm at the thought of returning. KIT days can be used to ask the employee to come to team meetings, company updates, training and/or to meet new teammates.
Deciding on communication
Before any employee goes on maternity leave, it can be helpful if the employer and employee agree how often and the best medium to communicate with each other. Both parties are able to make reasonable contact and it can be useful to do this before leave commences.
Welcome back letter
Why not send a letter to the employee to welcome them back and remind them of their return date? This could also include any key updates from the employer.
Return to work meeting
On the first day back, it is useful to meet with the returning employee to check in on how they are feeling and whether any support is required. Are they still breast feeding? If yes, then ensure facilities exist for this to happen. As it is likely they will be worried about their baby when they come back to work, make sure they know it’s okay for them to make some calls and check in on them. Organising a team lunch on the day they return is another way of easing the first day back nerves.
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Other considerations for employees returning from maternity leave
Whilst the above are options to help the employee return to the workplace, there are other aspects employers need to be aware of:
All employees have a statutory right to request flexible working, but no absolute right to it. However, such requests must be sensibly considered and not dismissed out of hand. If requests are turned down without due consideration, the employer risks discrimination claims. Remember a refusal to agree to a request must based on the 8 accepted business reasons. More information about handling employee flexible working request can be found on the Acas website.
Maternity leave and holiday entitlement
Employees on maternity leave continue to accrue statutory and contractual annual leave. Annual leave cannot be taken during maternity leave.
Case law suggests it may also be sex discrimination to not allow an employee to take holiday accrued during maternity leave at a later date, so it is a good idea to agree some holiday is taken before maternity leave commences and for an arrangement to be in place which allows for the employee to take their holiday when they return. This could involve tagging this on to the end of maternity leave or an arrangement that the employee takes any remaining accrued holiday over the first few months of their return to work.
Can an employee return to work before the end of their maternity leave?
Yes – as long as it is not before the end of the 2-week (4 in a factory environment) period of compulsory leave. An employee wishing to return ahead of the end of Additional Maternity Leave (AML) is able to do so by giving 8 weeks’ notice. An employer can delay the return if the required notice is not given; however, it can only be delayed by 8 weeks or at the end of AML, whichever is sooner.
What happens if an employee does not return from maternity leave?
In the event the employee does not want to return at the end of maternity leave, then notice in accordance with the employee’s contract should be given. If an employee simply does not return on the date they should, it is important not to jump to conclusions. Do carry out an investigation into the possible reasons for the non-return – does the employee actually know the date of return?
If the investigation finds that the employee knowingly took unauthorised leave because they were reluctant to return on the due date, then it may be appropriate to instigate disciplinary proceedings. If it is the case the employee is unwell, then the usual employer absence policy will apply and they should be treated like any other employee with an absence.
All business owners need to familiarise themselves with the law relating to pregnant employees and those on/returning from maternity leave so they ensure they treat their employees fairly. However, it is always worthwhile engaging with an HR consultant (especially where there is no in-house HR) to double check the right path is being followed and to sanity check any decisions.
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Written by Kate Marchant
Kate Marchant is an experienced HR professional and CIPD Associate Member who offers straight talking HR solutions for SMEs with friendly and jargon free advice through her consultancy Running HR Ltd.