FAQs: Maternity Discrimination at Work

1. Your employee wants to return from maternity leave earlier than she thought. This isn’t convenient. What can you do?
2. Since your employee has been on maternity leave, the department has been reorganised, and her job has changed. What should you do?
3. On returning from maternity leave, your employee would like to work part time; do you have to accommodate that?
4. Can you make someone redundant on maternity leave?
5. What is the burden of proof for maternity discrimination?
6. Does maternity discrimination include miscarriage discrimination at work? What should employers be aware of?

Your employee wants to return from maternity leave earlier than she thought. This isn’t convenient. What can you do?

New mums who want to return to work before the end of their full 52-week maternity leave must give eight weeks’ notice. But you could decide to accept less or no notice at all. If, as in this case, the earlier date is not suitable – perhaps you have to provide notice to a temporary worker or make other arrangements – you can postpone it until the full eight weeks’ notice. You cannot do this, however, if your preferred date is after the 52-week maternity leave entitlement.

Since your employee has been on maternity leave, the department has been reorganised, and her job has changed. What should you do?

If your employee is returning to work after Ordinary Maternity Leave (the first 26 weeks) she is entitled to:

• Return to the same job on the same terms and conditions as if she had not been absent, unless a redundancy situation has arisen
• The same entitlements as normally apply to women returning after Additional Maternity Leave (from the 27th week onwards)

If there are redundancies and you select her for redundancy, ensure that the decision is not because of or connected to her pregnancy or you will be liable for discrimination and unfair dismissal.

If it is not reasonably practical for you to take her back in the same job, you should offer ‘suitable alternative work’. If you fail to do so, any dismissal would automatically be unfair. On the other hand, if no suitable alternative exists or if your employee refuses suitable employment, you have a legitimate redundancy situation and you would not be dismissing them unfairly.

On returning from maternity leave, your employee would like to work part time; do you have to accommodate that?

Your employees with at least 26 weeks’ service have the right to request flexible working. As an employer, you are legally obliged to give the request serious consideration. In general terms, this means you should:

• Ask for it in writing
• Hold a meeting with your employee to discuss it
• Provide a decision in writing
• Give your employee the right to appeal

For full details on how to handle the process see our factsheet on Flexible Working Requests.

Where you decide to reject a request, you need to be able to justify your decision with business factors such as:

• Additional costs
• Impact on customers, products/services or colleagues
• Inability to reorganise work or recruit staff

Can you make someone redundant on maternity leave?

Employees can be made redundant when on maternity leave, but there are strict rules that employers must follow. Someone cannot be made redundant because they are on maternity leave – this would count as automatic unfair dismissal and maternity discrimination.

If there is a genuine reason to make an employee’s role redundant, and that employee is on maternity leave, the employer must consult with them and offer suitable alternative work if they have it. They should give an employee on maternity leave this as a priority over other employees.

From 6 April 2024, the period where an employer must offer suitable alternative work is extended from the date the employee informs them of their pregnancy to 18 months after the child is born, or the expected due date.

Employers should always follow a fair redundancy process when considering making redundancies; we offer redundancy advice to employers to ensure that your process is fair.

What is the burden of proof for maternity discrimination?

Proving discrimination claims can be challenging as it is rarely made explicit that someone is carrying out a discriminatory act. In the Employment Tribunal, an employee claiming maternity discrimination would be asked to provide sufficient proof that an act of unlawful discrimination has taken place, and the employer will then need to provide a non-discriminatory explanation for their actions.

Does maternity discrimination include miscarriage discrimination at work? What should employers be aware of?

Under the Equality Act 2010 a woman is protected against discrimination in the workplace that arises because of her pregnancy, any illness related to her pregnancy, or absence because of that illness – this includes miscarriage. This protection extends two weeks after the end of the pregnancy. After this period, a woman is still protected by the sex discrimination protections in the Equality Act if she is treated less favourably because she suffered a miscarriage.

If an employee experiences a miscarriage after 24 weeks of pregnancy, she is entitled to up to 52 weeks of statutory maternity leave or pay. There is no entitlement to statutory maternity leave if a miscarriage happens in the first 24 weeks of pregnancy – however, an employer should still consider offering time off to an employee who has experienced miscarriage at what can be a very difficult time both emotionally and physically.

For more information about how our expert maternity discrimination lawyers can help your business understand employer maternity and pregnancy law, contact us today on 01273 609911, or email info@ms-solicitors.co.uk.