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Tuesday 30 January 2024

Going back after maternity leave: what are your rights?

By Jo Seery

With constant upheaval in the health service, new mothers working for the NHS are often anxious about going back to work. Jo Seery explains the rights women have when returning after maternity leave.

Close up of baby with toy in mouth

Today’s NHS workplaces are fast-changing environments, which can create uncertainty for women returning to work after maternity leave. All women employees on a contract of employment have a right to 52 weeks maternity leave, unless they give notice to their employer that they want to return earlier. But what rights do they have when they do return?

What job can I go back to ?

If you return to work after 26 weeks or less (referred to as Ordinary Maternity Leave or OML), you are entitled to return to the same job you were doing before. The “same job” means that the nature of the work under the contract, the capacity required and workplace should be the same. You are entitled to the same rate of pay and the same terms and conditions you would have if you had not been on maternity leave.

If you return to work after more than 26 weeks, you have the same rights as above, with one exception: if it’s not “reasonably practicable” for your employer to give you your old job back for any reason other than redundancy (see below), they can offer you another job. This must be both suitable and appropriate for you to do.

Can I change my hours?

You should first check your contract of employment. Some employers include a term in the contract which expressly allows for employees to return on different terms. However, you should always seek advice from MiP to make sure the terms are right for you. For example, in one case, the employer agreed that a woman could return to work part-time, but only on a lower grade.

Employees who have 26 weeks continuous service can make a statutory flexible working request to change their working hours, their place of work (e.g. so they can work from home) or the times they work (e.g. by changing their start or finishing times). If a request is refused, you may be able to claim that the refusal amounts to indirect discrimination. In you think that’s the case, seek advice from MiP.

Will I be able to continue breast feeding?

Under regulation 25(4) of the Workplace (Health, Safety and Welfare) Regulations 1992, employers are required to provide “suitable facilities” for breastfeeding mothers. There is no statutory right to time off work for breastfeeding or expressing milk. However, an employer who refuses flexible working arrangements to enable a woman to breastfeed may be held to have indirectly discriminated against her, as an employment tribunal found in the case of McFarlane and another vs EasyJet Airline Company Ltd.

Can I be made redundant?

Assuming there is a genuine redundancy situation, women who are at risk of redundancy while on maternity leave are given special protection under regulation 10 of the Maternity & Parental Leave etc Regulations 1999. The employer must first be able to show why it was not practicable to reinstate a woman returning from maternity leave to her old job. If, and only if this can be shown, and there are suitable alternative jobs available, the woman is entitled to be offered suitable alternative employment. This provision effectively gives women on maternity leave priority over other employees.

It’s important to note that this protection currently does not apply to women who have already returned from maternity leave.

Future reform

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 passed into law last July. This enables regulations to be made which may include extending the protection under regulation 10 to women after they have returned from maternity leave. Full details will be set out in the regulations, which are expected to be published some time in 2024.

The Employment Relations (Flexible Working) Act 2023, which also passed into law last July, extends the right to request flexible working to all employees from day one of their employment, and will require employers to consult with staff about their request and provide reasons if they reject it. It is not expected to come into force until July 2024.

  • Jo Seery is a senior employment rights solicitor at Thompsons Solicitors, MiP’s legal advisers. Visit the Thompsons website for more info. Legal Eye does not offer legal advice on individual cases. Members needing personal advice should contact MiP by emailing MemberAdvice@miphealth.org.uk.

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