Blog: Pregnancy & maternity in the workplace – part 3

Maternity leave returns – tricky legal issues

An employee’s return to work following their maternity leave can be really positive.  Many women are keen to get back to work (and to drink a cup of coffee uninterrupted!).  Their employer may be grateful for their return too – they’re getting that knowledgeable individual back, the team will be a bit less stretched and clients may also be pleased their contact has returned to the business.

When things don’t go to plan

Despite best intentions, it’s not always easy.  Even if, as an employer, you’ve done all the right things during your employee’s maternity leave, such as KIT days and perhaps putting in place a new flexible working arrangement, her return to work may yet prove problematic.

Let’s assume that the individual in question is returning to what is essentially the same role.

Even if the job is the same, there are still likely to be changes to navigate.  The employee may well have been off for more than a year, priorities may have changed, she’s facing the challenge of being a working parent, she may feel guilt or a real dip in her confidence. Some grapple with the sheer logistical grief of working and looking after young children.

In the time she’s been away, the business is unlikely to have stood still.  New processes, additional services, new reporting lines, work allocation changes or even different ownership are all possibilities.  She’s unlikely to be return to things exactly as she left them.  In fact research by the Equality and Human Rights Commission shows that 6% of returning employees described ‘other changes’ to their role that were against their wishes.   More worryingly a recent piece of research revealed that 77% of working mums have encountered negative or discriminatory treatment at work.

What does the law say?

From a legal perspective, the period of, and after, a return from maternity leave is quite a curious one.  During pregnancy and maternity leave, there are quite clear time-scales and protections in place, called the ‘protected period’.  It lasts from when the pregnancy begins to the end of the ‘additional maternity leave’ period or (if earlier) when the employee returns to work after the pregnancy.

Does this mean that the employee returning to work is no longer protected, as they are no longer within a ‘protected period’?  The answer is yes and no.

There is a lacuna in the Equality Act 2010 which means that there can still be ‘maternity’ discrimination after someone’s maternity leave has ended, where the unfavourable treatment “is in implementation of a decision taken in the protected period” (section 18(5) Equality Act 2010).

This means that decisions taken during pregnancy and/or in someone’s ‘absence’ can still be challenged if the impact continues after the return to work.  So decisions to re-jig the job role, remove responsibilities, change work allocations or client teams or even change the size or location of a desk can be challenged after the ‘protected period’. You may well laugh, but I have acted in a maternity claim about desk size – with ‘before’ and ‘after’ photos in our Tribunal bundle!

In the Commissioner of Police for the Metropolis v Keohane, the decision to remove a dog from a police dog-handler and then not to return the dog to the individual at the end of her maternity leave, was held to be discrimination because of her pregnancy.  The EAT also found that the same facts could give rise to a potential argument that the policy itself was indirectly discriminatory on grounds of sex.

Some specific challenges with maternity returners

Breastfeeding

There is no statutory right to time off for breast-feeding, despite efforts over the years to raise legislation on this issue.  Nevertheless, employees have certain protections.  Importantly, there is a duty on the employer to conduct a risk assessment personal to her individual circumstances and, if this is not done, it will probably amount to sex discrimination.

Specific guidance on this point is available from ACAS and the HSE guidance too has guidance on new and expectant mothers.

You may also need to agree flexible working practices to accommodate a breastfeeding employee. In McFarlane and another v EasyJet Airline Company Ltd, two cabin crew employees asked EasyJet if they could work shorter eight hour shifts, on return to work, so that they could express their milk either side of the shift. The request was based on their GPs’ recommendations.  EasyJet refused the request. A Tribunal held that EasyJet’s failure to accommodate the employees’ breastfeeding requirements amounted to indirect sex discrimination.

Sickness arising from pregnancy/maternity leave

It is still possible for an employee to be dismissed for capability after a return to work. In Lyons v Department of Work and Pensions the Employment Appeal Tribunal held that an individual who was unable to return to work as she was suffering post-natal depression was not discriminated against on grounds of her pregnancy/maternity, nor her sex.

Right to request flexible working

A return to work can often trigger a request for flexible working. Whilst there are many positive experiences and the attitude to flexible working is improving, too many mothers still report a negative experience related to flexible working.

I discussed this with Kristal McNamara, founder of Flexology, a recruitment consultancy specialising in hiring for flexible roles.  Her experience is that many women struggle with a sense of always being ‘on duty’ despite reduced hours and pay.  This is particularly the case with professional women returning to a 4 day week.  Kristal says that contributing to this is the reluctance of some employers to let their clients know their employee does not work on certain days.

Ultimately, the mental health impact for the individual and employer can be considerable.  Sometimes this arrangement becomes so untenable the individual just resigns and the business loses a talented employee. Other times the employee may be overwhelmed by stress and anxiety with its inherent repercussions.

Let’s have some positive news to finish on.  In amongst all the negative experiences identified in the 2016 research, they also asked questions of those who said that they’d had a positive experience.  This was generally felt by those employees who had both a supportive line manager and a supportive HR department.

Having spent years doing training sessions on maternity for line managers, I always found plenty of good intentions.  However there tended to be a lot of confusion and general lack of confidence, with the result that managers did not always feel able to interact positively with the employee.

So, if you invest in upskilling your managers, a positive return to work is more likely and you’ll be far more likely to retain those talented employees in your business.

Tamsin James
Senior Solicitor

I hope these thoughts have been useful.  If you would like to discuss any aspect of maternity leave – or indeed any other type of ‘family rights’ leave, I’d love to hear from you (contact me)

Our next blog will discuss what happens when there is not a job to return to – or something has substantially changed.