Our Employment Law solicitors in Brighton and Eastbourne answer employees questions about maternity discrimination in the workplace.
No. As long as you give the correct notice to your employer you are entitled to take up to 52 weeks of Statutory Maternity Leave. You do not have to take your full allowance but you must take leave in the first 2 weeks after your baby is born. If you work in a factory you must take 4 weeks off.
If you want to return to work before the end of your statutory maternity leave, you must give your employer at least eight weeks’ notice of your date of return.
If you originally notified your employer that you wanted to return to work before the end of your maternity leave, you can change your mind and return later (or earlier). To delay your return, you must give your employer at least eight weeks’ notice. This notice should end on the original return date as stated in your earlier notice.
This can be done by:
You and your employer can agree a further period of time off work when statutory maternity leave ends. I would advise that this agreement is put in writing so both parties are clear about what has been agreed.
You could choose to take parental leave immediately after the end of your maternity leave. Unless there is a workforce or collective agreement setting out different arrangements for the workplace, the following rules apply:
You will accrue annual leave during your statutory maternity leave. You may wish to take any accrued and untaken holiday at the end of your maternity leave. The option to take annual leave may be at your employer’s discretion, so you must check your employment contract and staff handbook and take the annual leave in accordance with any relevant policies on annual leave.
If you want to change your hours, you have the right make a request for flexible working.
You will need to make a request in writing and your employer must seriously consider how you can do your existing job on a part-time basis. Your employer can refuse a flexible working request based on one of the eight business reasons as set out in the ACAS Code. These are:
A meeting should be arranged to discuss your request and you have the right to appeal if your request is refused. If your employer refuses without a good business reason you may be able to claim indirect sex discrimination. This is where there is a provision, criterion or practice, such as full-time working, applies to everyone but particularly disadvantages women compared to men, and which an employer cannot justify as necessary for the business.
You can only be dismissed for a fair reason such as redundancy. This would require a fair process which includes informing and consulting with you, fair selection and the offer of suitable alternative employment. It is extremely unlikely that any of the other fair reasons for dismissal would apply such as conduct, capability or some other substantial reason as there would be no reason to wait until after your maternity leave had been completed.
If you have taken Ordinary Maternity Leave, only you are entitled to return to the same role. If you have taken Additional Maternity Leave, you are entitled to return to the same role, or if not reasonably practicable (e.g. due to a reorganisation), a suitable alternative on no less favourable terms. However, neither of these rules apply if there is a genuine redundancy situation.
It is important that you find out why your job no longer exists, i.e. where has your work gone.
If there has been or is a genuine redundancy situation your employer should have consulted with you about this and you are entitled to be offered a suitable alternative role, if available, in priority to any others at risk. However, if there is not a genuine redundancy situation, e.g. you suspect your role may have been given to someone else in your absence, you will have a potential maternity discrimination claim.
You need to raise a formal grievance setting out why you believe you have been discriminated against and linking this with your maternity leave. You need to enter your case for ACAS Early Conciliation within three months minus a day within finding out about this promotion opportunity. Your grievance will help you test whether this was just a lost opportunity or whether you were more suitable for this job. It is possible to issue discrimination claims against the company while employed in order to claim compensation.
It is difficult to advise without knowing more about the employer’s reasons for doing this. It is also difficult for you because you haven’t been at work and don’t know what has been happening. You need to ask them for a lot more information and whether this is a redundancy situation.
If it is, then you need to find out why you are no longer needed and where the tasks that you used to do have been moved to.
A Settlement Agreement usually provides for paid advice from an independent legal advisor and if you want to leave the company, you can explain that you would be prepared to leave but need a solicitor to advise how much is fair. This enables your solicitor to carry out this fact finding on your behalf. On the basis of your employer’s response, we can negotiate a settlement sum that is fair and reflects what you might get were you to make a claim for maternity discrimination at the Employment Tribunal.
The only reason for staying with your employer after your maternity leave is if you were paid additional contractual maternity pay where your contract requires you to stay with a company for a fixed period. If you left before this period, you would have to pay the contractual element back to your employer.