How to deal with an employee returning from leave.
When an employee is shortly to return from maternity leave or ShPL, there are a number of issues which regularly crop up.
We have set out below the key things to consider in managing the employee’s return from leave appropriately. (Please see the Glossary below for further information on terms used in this guide.)
Returning from maternity leave early
The employee is not permitted to return to work earlier than 2 weeks after the birth (4 weeks for factory workers) but otherwise, if she wants to return earlier than after 52 weeks’ leave, she must give you at least 8 weeks’ notice. You can agree a shorter notice period if you can make arrangements in time – or you can require her to delay her return to give you the required 8 week notice period (as long as this does not extend her leave beyond 52 weeks). If she wants to share her leave with her partner, she will need to give you at least 8 weeks’ notice of this (see our Shared Parental Leave Checklist for further information).
Delaying a return to work
If the employee wishes to delay the return to work after maternity leave or ShPL, you may be able to arrange a period of unpaid parental leave or annual leave. Any agreement should be recorded in writing. If s/he is unable to return through illness, this should be recorded as sick leave and managed in the normal way.
Discuss the employee’s plans for returning to work. You should plan on the basis that the employee will take a year’s maternity leave. If she has not told you any differently, she is not required to give you further notice. However, if she wishes to return earlier than this or invoke ShPL, she should give you at least 8 weeks’ notice. If she has given insufficient notice, you can delay the date to give 8 weeks’ notice but you cannot delay it beyond the end of her leave period. If the employee wishes to change his or her mind about periods of ShPL or (in the mother’s case) return later from maternity leave than originally notified, s/he must give you 8 weeks’ notice.
Right to return to the same job
The employee is entitled to return to the same job on no less favourable terms (the employee must also receive any improvements s/he would have received had they not been on leave, such as pay rises), if s/he is returning from a period of OML or ShPL (provided the ShPL, when added to any other relevant leave such as maternity leave, totals 26 weeks or less).
If she is returning from a period of AML, she is entitled to return to the same job on the same terms, unless there is some reason which renders this not reasonably practicable for you to accommodate. In such circumstances (such as a reorganisation), she is entitled to return to a different job which is suitable and appropriate in the circumstances and on terms no less favourable than they would have been, had she not been on maternity leave. This is also the entitlement for someone returning from a period of ShPL which, when added to any other relevant leave such as maternity leave, totals more than 26 weeks and also for an employee returning from a period of leave which, when viewed in total, included any period of AML or parental leave of more than 4 weeks.
Give the employee an opportunity to ask about flexible working. Discuss the process for making a formal request to change hours or work flexibly and likely timescales for considering any request. Depending on when you discuss this, you may need to advise the employee that it might not be possible to implement any change immediately on his or her return if a request has not yet been submitted.
Consider what handover is needed, including whether the employee will need to meet with her cover prior to a formal return. This could be arranged as a KIT Day or SPLIT Day.
Although there is no statutory entitlement to facilities for breastfeeding itself or time off to do it, if the employee is breastfeeding, she is entitled to suitable facilities to rest (e.g. to lie down) and rest/meal breaks. Toilets are not considered to be suitable facilities and if at all possible it is recommended that clean and private facilities are provided for expressing milk and a fridge for storing it.
You should assess whether there are any risks posed to a mother returning from maternity leave (particularly if she has given birth in the last 6 months or has advised you that she is continuing to breastfeed) or a mother or partner returning from ShPL. If any significant risks are identified, you should try to alter the employee’s working conditions or hours to minimise or avoid that risk.
AML – Additional Maternity Leave – a further period of 26 weeks’ maternity leave which follows immediately after OML giving a total of 52 weeks’ leave.
EWC – The Expected Week of Childbirth is the week (Sun-Sat) in which the due date falls.
KIT Days – Keeping in Touch Days – a woman can work for her employer for up to 10 KIT Days during her maternity leave without it ending.
MATB1 form – form given to expectant mother by their midwife or doctor from the 20th week before the EWC which confirms the pregnancy and due date.
OML – Ordinary Maternity Leave – 26 weeks’ maternity leave.
SMP – Statutory Maternity Pay.
ShPL – Shared Parental Leave.
ShPP – Statutory Shared Parental Pay. SPLIT days – Shared Parental Leave – In Touch days – a parent can work for up to 20 SPLIT days during her ShPL without it ending. These are in addition to her KIT days.
This note is a summary of the issues and is not a substitute for detailed legal advice. It may contain information of general interest about current legal topics, but it should not be taken as providing legal advice on any of the topics covered.