FAQs: Maternity Discrimination at Work for Employees

1. What is maternity discrimination?
2. Can you be denied maternity leave?
3. You would like to return to work later than you originally notified your employer. What can you do?
4. You have used up your statutory maternity leave but would like to spend more time at home with your baby. Is this possible?
5. You would like to return to work part-time after your maternity leave. What should you do?
6. Can you get maternity leave if you change jobs?
7. Can you split maternity leave?
8. What should you do if you’re informed of a performance review while on maternity leave?
9. Can you work while on maternity leave?
10. Can you be demoted while on maternity leave?
11. Do you have to pay back maternity leave if you quit?
12. Can you be fired after maternity leave?
13. You have contacted your employer to organise your return to work. You have been told that your job no longer exists. What can you do?
14. Can an employer change your job while on maternity leave?
15. I don’t want to return to work after maternity leave; what can I do?
16. You have just found that a promoted role came up while you were on maternity leave which you would have been suitable for, but no-one informed you. What can you do?
17. You have been contacted by HR and offered a Settlement Agreement while on maternity leave. You don’t understand why. What can you do?
18. How long do you have to work after maternity leave before quitting?
19. Can I return to work early from maternity leave?
20. How much maternity leave to fathers get?
21. Can you split paternal leave?
22. Can you take maternity and paternity leave at the same time?
23. My statutory maternity leave period ended before 6 April 2024, am I entitled to extended redundancy protection on my return to work?

What is maternity discrimination?

Maternity discrimination is where you are treated unfavourably by your employer as a result of your maternity leave, your request for maternity leave, or because you are breastfeeding. You will have suffered a disadvantage as a result of this unfair treatment.

Can you be denied maternity leave?

No. You should give the correct notice 15 weeks before your baby is due to your employer and 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 are refused maternity leave you may be able to claim unlawful detriment as well as pregnancy or maternity discrimination under the Equality Act 2010.

You would like to return to work later than you originally notified your employer. What can you do?

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.

You have used up your statutory maternity leave but would like to spend more time at home with your baby. Is this possible?

This can be done by:

• You and your employer agreeing a further period of time off work when statutory maternity leave ends.
• The holiday that you have accrued while on maternity leave can be taken before you return so this additional time is paid.
• You could choose to take parental leave immediately after the end of your maternity leave. You must give 21 days’ notice of your intention to take parental leave and can take up to   four weeks in any given year. However, your employer may postpone the parental leave by up to six months to avoid operational disruption.

You would like to return to work part-time after your maternity leave. What should you do?

If you want to change your hours, you have the right to 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:

• The burden of additional costs
• An inability to reorganise work amongst existing staff
• An inability to recruit additional staff
• A detrimental impact on quality
• A detrimental impact on performance
• A detrimental effect on the ability to meet customer demand
• Insufficient work for the periods the employee proposes to work, and
• A planned structural change to the business

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, that applies to everyone but particularly disadvantages women compared to men, and which an employer cannot justify as necessary for the business.

Can you get maternity leave if you change jobs?

Employees are entitled to maternity leave from day one. This means that you are entitled to maternity leave if you are pregnant when you start a new job. However, you may not be eligible for Statutory Maternity Pay and may have to claim Maternity Allowance.

Can you split maternity leave?

You can take maternity leave all in one go, or you can take maternity leave in blocks in between periods of work.

What should you do if you’re informed of a performance review while on maternity leave?

Employers can only place employees on a performance review when they return from maternity leave. If their decision to do so is because the employee is on maternity leave, this is likely to be discrimination. Any targets that an employer sets as part of a performance review should take into account the fact that the employee is pregnant or on maternity leave. For example, sales targets.

If you are informed of a performance review while on maternity leave you may want to seek legal advice from our specialist Employment Law team.

Can you work while on maternity leave?

Employees can work up to 10 days  for their employers, while on maternity or adoption leave. These days are called ‘keeping in touch” (KIT) days. KIT days are optional and both the employee and employer need to agree to them.

Employees who are taking Shared Parental Leave can work 20 ‘shared parental leave in touch’ (SPLIT) days in addition to the 10 ‘keeping in touch days’ available to employees on maternity or adoption leave.

Can you be demoted while on maternity leave?

Your employer may try to change aspects of your job while you are on maternity leave, but this may be unfavourable treatment if this is because you were  on maternity leave. You should be informed and consulted about  any changes to your role.

You may wish to raise a formal grievance or contact an Employment Law solicitor if you believe that you have been demoted.

Do you have to pay back maternity leave if you quit?

If you decide not to return to work after or during maternity leave, you won’t need to pay back statutory maternity pay or Maternity Allowance. But if you receive additional contractual maternity pay you might have to repay this if you don’t return to work or if you try and leave within a specified period. You should check your contract or employee handbook for this information.

Can you be fired after maternity leave?

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, providing details of a restructure where your job no longer exists or a fair selection process and the offer of suitable alternative employment. Other fair reasons for dismissal could apply such as conduct or capability if poor performance and conduct had only been discovered just before you went on maternity leave or before returning.

You cannot be fired for having taken maternity leave as this would be discriminatory.

You have contacted your employer to organise your return to work. You have been told that your job no longer exists. What can you do?

If you have taken Ordinary Maternity Leave, 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 was a genuine redundancy situation, your employer should have consulted with you about this. You would have  been entitled to be offered a suitable alternative role, if available. Also, if this 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.

From 6 April 2024, employees will have the right to be offered a suitable alternative post (if there is one) if their job is at risk of redundancy from when they notify their employer that they are pregnant. This protection is in place until 18 months after the date or expected date of childbirth.

Can an employer change your job while on maternity leave?

If your employer changes your job whilst you are on maternity leave without consulting you this may be unfair dismissal and maternity discrimination. This is particularly the case if:

• your job exists (and they have given it to someone else)
• your old job would still exist if you hadn’t taken maternity leave
• the new job isn’t something that you can do
• the new job has worse pay or conditions than your original job

I don’t want to return to work after maternity leave; what can I do?

If you decide you do not want to return to work after your maternity leave ends, you will need to give notice to your employer. Your contract or employee handbook should tell you how much notice you need to give your employer. This may affect your contractual maternity pay, depending on your contract.

You have just found that a promoted role came up while you were on maternity leave which you would have been suitable for, but no one informed you. What can you do?

You need to raise a formal grievance setting out why you believe you have been discriminated against and linking this with your maternity leave and the lack of consultation. You have the right to be informed and consulted while on maternity leave in the same way you would have been had you still been at work.

You need to enter your case for ACAS Early Conciliation within three months minus a day of finding out about this loss of 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.

You have been contacted by HR and offered a Settlement Agreement while on maternity leave. You don’t understand why. What can you do?

It is difficult to advise without knowing more about your 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 compensation 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 able to make a claim for maternity discrimination at the Employment Tribunal.

How long do you have to work after maternity leave before quitting?

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 maternity pay back to your employer.

There is no requirement for you to repay any Statutory Maternity Pay.

Can I return to work early from maternity leave?

You can return to work early from maternity leave although you should discuss this with your employer.  If you wish to end your maternity leave earlier than originally planned, you should tell your employer at least 8 weeks before your new end date.

How much maternity leave do fathers get?

Fathers do not get maternity leave. They are entitled to Paternity Leave or can apply for Shared Parental Leave.

Can you split parental leave?

You can take Shared Parental Leave in blocks or take it all in one go.

Can you take maternity and paternity leave at the same time?

Eligible parents can both be on Shared Parental Leave at the same time if they wish. Fathers / partners can also start their Shared Parental Leave while the mother is still on Maternity Leave.

My statutory maternity leave period ended before 6 April 2024, am I entitled to extended redundancy protection on my return to work?

No – the new legislation giving employees extended protection from redundancy after returning from maternity leave only applies if your statutory maternity leave period ends on or after 6 April 2024.

If you’re concerned about pregnancy and maternity discrimination at work, contact one our expert Employment lawyers today on 01273 609911, or email info@ms-solicitors.co.uk.