Handling new parents
From Menzies Law
From a legal perspective, an employee’s return from maternity leave is quite a curious one. During pregnancy and maternity leave, there are quite clear timescales and protections in place. This ‘protected period’ lasts from when the pregnancy begins to the end of the ‘additional maternity leave’ period or (if earlier) when the employee returns to work after the pregnancy. S does this mean that an employee returning to work is no longer protected, as they are no longer within a ‘protected period’? The answer is yes - and no.
There is a gap in the Equality Act 2010 which means that there can still be ‘maternity’ discrimination after someone’s maternity leave has ended, where the unfavourable treatment “is in implementation of a decision taken in the protected period” (section 18(5) Equality Act 2010).
This means that decisions taken during pregnancy and/or in someone’s ‘absence’ can still be challenged if the impact continues after the return to work. So, decisions to re-jig the job role, remove responsibilities, change work allocations or alter a client base can be challenged after the ‘protected period’.
There are some specific challenges with maternity returners. For instance, there is no statutory right to time off for breast-feeding, but nevertheless, employees have certain protections. Importantly, there is a duty on the employer to conduct a risk assessment personal to the mother’s individual circumstances.
You may also need to agree flexible working practices to accommodate a breastfeeding employee. There is good case law to back this up and a failure to accommodate an employee’s breastfeeding requirements could amount to indirect sex discrimination.
In terms of any sickness arising from pregnancy/maternity leave, it is still possible for an employee to be dismissed for capability after a return to work. We recommend you seek legal advice in such circumstances.
A return to work can often trigger a request for flexible working. Whilst the attitude to flexible working is improving, too many mothers still report a negative experience. A flexible working request must be looked at fairly by an employer and a decision made within three months. Only recently an estate agency lost at the employment tribunal and had to pay out £184,000 in compensation for sex discrimination. This case revolved around a failure to accommodate a flexible working request when an employee returned from maternity leave.
Having spent years running training sessions on maternity for line managers, we’ve always found plenty of good intentions. However, there tends to be a lot of confusion and general lack of confidence, with the result that managers did not always feel able to interact positively with the employee. Our biggest tip is to invest in upskilling your managers. This is most likely to yield both a positive return to work for an individual and a greater chance for you to retain talented employees in your business.