Question: Am I entitled to return to the same job after I return from maternity leave?
Chris Hadrill, a specialist employment solicitor at Redmans, answers the question:
“Am I entitled to return to the same job after I return from maternity leave?”
What your rights are upon your return from maternity leave depends upon whether you have only taken Ordinary Maternity Leave (“OML”) (the first 26 weeks’ leave) or whether you have taken Additional Maternity Leave (“AML”) (a period of 26 weeks’ leave which begins on the day after your period of OML ends).
If you have only taken OML (or have returned before the end of OML) then you are entitled to return to the same job in which you were employed prior to your maternity leave. Further, the terms and conditions under which you are employed must be the same as, or no less favourable than, the terms and conditions you would have returned to work under if you had not been absent. The only exception to this is if a redundancy situation arises whilst you are on maternity leave – however, if a redundancy situation does arise then your employer must take the usual steps to carry out a fair redundancy process (including, for example, creating a fair pool for redundancy, using fair selection criteria, applying these criteria fairly, consulting with you, and considering alternative employment for you).
If you have taken AML then you are, again, entitled to return to work in the same job and on the same terms and conditions as if you had not been absent from work. However, if you have taken a period of AML then your employer may be able to place you in a different job upon your return if there is some reason (other than redundancy) which renders it not reasonably practicable to allow you to return to the same job. In these circumstances:
- You are entitled to return to a different job which is both suitable for you and appropriate in the circumstances; and
- The terms and conditions must not be less favourable than they would have had you not been absent from your job
It is not the case that, should you have taken AML, you are automatically lose your right to return to your old job and are only entitled to return to a suitable alternative job – the onus is on your employer to show why it is not reasonably practicable for you to return to your previous job.
If you are returning from a period of OML and your employer states that they wish to transfer you to a new job then you may have claims for pregnancy and maternity discrimination, breach of the Maternity and Paternity Leave Regulations, and automatic unfair dismissal.
If you are returning from a period of AML and your employer states that they wish to transfer you to a new job then, if your employer cannot show that it was not reasonably practicable to allow you to return to your job, you may have (again) claims for pregnancy and maternity discrimination, breach of the Maternity and Paternity Leave Regulations, and automatic unfair dismissal.