Concept for returning to work

You have had time away from the workplace looking after your gorgeous new-born or adopted child, in your own bubble of mother and child. Re-adjusting to this change in your life and routine can be potentially tricky. So, we have set out the most common questions and answers in one place to make it easier for you when returning to work.

1. Can I change my hours when I return from maternity leave?

Yes you can request flexible working if you have been working for your employer for 26 weeks continuously. This can include a request to changing your working days or hours or a request to work from home. Ask as early as you can as this process can include meetings with your employer and could take as long as three months to complete.

You must make this request in writing and it must cover certain information, including the changes you are requesting, when you want the changes to come into effect and any impact you foresee the changes will have on your workplace. An employer can refuse a request but only if there are certain business reasons for doing so. Requests must be handled fairly by your employer.

2. Can I continue to breastfeed when I return to work?

While you are entitled to protection from health and safety risks if you are breastfeeding, there isn’t a statutory right to time off work to enable you to breastfeed. There is also no statutory requirement for an employer to provide facilities for breastfeeding to take place. However, HSE guidance recommends that employers should provide a private, clean environment, other than toilets, for expressing milk and a fridge to store it.

Breastfeeding mothers may arguably have protection under sex discrimination legislation, if they are treated to their detriment as a consequence of this and their employer cannot objectively justify it. Take advice if you are mistreated at work due to breastfeeding.

3. Can I return to the same job?

This depends on how long you have been on maternity leave for.

If you have been on maternity leave for 26 weeks or less you have a right to return to the same job and your pay and conditions must be the same as before you went on maternity leave.

If you have been on maternity leave for more than 26 weeks (or have combined a shorter period with at least four weeks’ parental leave on top) your right to return to work remains to return to the same job but if your employer has a reason why it is not reasonably practicable for them to allow you to return to the same job, you have a right to return to a suitable alternative job.  Your pay and conditions must not be less favourable than they would have been had you not been absent.

4. Can my employer make me redundant before I return back to work?

Yes, they can, if there is a genuine redundancy situation and there is no suitable alternative work for you. But, if you are selected for redundancy during your maternity leave, you are entitled to be offered any suitable alternative work that exists. You have priority over your colleagues who are not on maternity leave, which is a rare example of lawful positive discrimination. The Government consulted in early 2019 on whether to extend this protection to cover the period from when you first inform your employer of your pregnancy to six months after your return to work, and has committed to introducing this reform “when parliamentary time allows”.

If you believe you have been made redundant because of your maternity leave and it was not a genuine redundancy situation or you are on maternity leave and are not offered suitable alternative vacancies that exist, then you may have a claim for automatically unfair dismissal and/or maternity discrimination.

5. Can I leave my employer after my maternity leave?

Yes, you do not have to return. If you decide to resign you need to give your contractual notice to your employer or if you do not have contractual notice, at least one week’s statutory notice. It is advisable to do this in writing, even if that’s not specifically required by your contract. Please be aware that if you receive contractually enhanced maternity pay you may have a clause in your contract requiring you to pay this back if you do not return to work, so please check your contract and related correspondence/documents carefully.

6. What happens to my holiday entitlement?

It is important that you speak to your employer about this before your maternity leave, to ensure you are happy with your holiday entitlement and how it is going to be used before and after your maternity leave.

You will continue to accrue annual leave whilst on maternity leave but cannot take this during your maternity leave. You are entitled to carry forward the statutory 28 days of holiday to the next holiday year if it cannot be taken in the year in which it accrues because of maternity leave. If your employer offers more than the statutory minimum it is at their discretion whether you can carry this forward.

7. Can I return to work early from my maternity leave?

Yes, so long as you notify your employer and inform them of your decision at least eight weeks before the new end date of your maternity leave. There is no requirement for this to be in writing but it is desirable to do so as evidence. Your employer is entitled to delay your return until eight weeks has passed (but not beyond the end of your statutory maternity leave period), if you give shorter notice, but may agree to you returning on shorter or no notice, if that suits both parties.

You may during your maternity leave (or earlier) decide to exercise your right to take shared parental leave instead of maternity leave. This is a more flexible right to take leave and can be shared with your partner. You would need to comply with your statutory obligations under this right to notify your employer and provide it with certain information, including how you wish to take shared parental leave.

8. Can I extend my maternity leave?

Yes, as long as you notify your employer of this decision at least eight weeks before your original return to work date and this is within the 52 weeks of maternity leave you are entitled to.

You might also opt to take holiday or parental leave following maternity leave, but you would need to give your employer the correct notifications for this, which may depend on the arrangements for such leave in place with your employer.

9. I am feeling nervous about returning to work, what can I do?

Whilst you are on maternity leave you can arrange up to ten Keeping In Touch (KIT) days. These allow you to work during your maternity leave (without ending that maternity leave) so you are prepared for when you return. These can help you adjust to any changes there have been in the workplace such as new systems or allow you to attend a training day and they can give you an opportunity to discuss any concerns about your return with your line manager. They are entirely voluntary. The rate of pay is a matter for agreement between you and your employer, but would normally be the contractual rate of pay, depending on the work done and what is agreed between you and your employer.

10. What can I do to ensure a smooth transition back to work?

• Have a dry run and test how long it takes to get to work and arrange a morning routine.
• Arrange KIT days and/or have a planned handover period so you are up to date with any changes that have taken place in your absence and have time to learn anything new.
• Have a back-up plan for cases of emergency with childcare.
• Arrange meetings with your line manager in order to keep them informed of progress and ensure any difficulties are dealt with.
• Know that you have the right to up to 18 weeks parental leave for a child following maternity leave including after you have returned to work (unpaid unless your employer provides otherwise).
• You also have time off for dependants rights to enable you to have a short period of time off work to deal with a family emergency (again unpaid unless an employer is willing to pay).
• Plan in advance for the future when your child will be in pre-school/school and you may wish to work school hours.
• Experience leaving your child with the childcare before starting work to ensure this is a less nerve-wracking experience.

If you have any issues when returning to work we have an experienced employment team who can handle cases regarding maternity leave and discrimination. We can provide you with all the necessary advice and support to help handle these matters.

Our employment solicitors and HR advisors work in partnership with organisations to improve their HR practices and advise on employment issues. To discuss this article or any other HR issue call 01392 210700 or