Maternity leave and return to work: your rights gets a lot of questions in from working mums who are on maternity leave and arekeen to know their rights around certain key issues. Here our employment law experts – Joanne Robson, Tracey Guest, Ruth Renton and Laura Livingstone give you the lowdown on the most common problems.

mother with her baby


Can you change your return date?

You must give eight weeks’ notice if you revise your return to work date unless a lesser notice period can be mutually agreed between you and your employer.

If your employer fails to acknowledge any letter setting out your initial intended return date then you are under no obligation to give notice of any revised date.

Do you have to pay back SMP if you decide not to return to work?

In the event that you do not return to work, you do not have to pay back SMP. However, if you receive Additional Maternity Pay from your employer you may have to pay this back.

Check the details in your contract. Carly Forrest, an employment lawyer at Slater Heelis, says that, her personal experience of dealing with women on maternity leave in a large public sector organisation that was making big cuts was that many who were facing a redundancy situation in the current climate took advantage of the voluntary redundancy scheme because they did not have to pay back maternity pay. She says:

“I think an incentive for women on maternity leave who are offered the option of voluntary redundancy is the fact they generally do not have to pay back maternity pay and they also receive a severance payment.”

Can I start a new part-time or freelance job on maternity leave?

With regards to taking a second job, you must remember that whilst on maternity leave you are still classed as an ‘employee’ of your original employer and the stipulations around taking additional work apply.

You may need to seek permission from your manager, although this cannot be unreasonably withheld, for instance, if taking the job will not affect your permanent job.

If you start a job during your paid period of maternity leave for a new employer i.e. an employer you did not work for during the 15th week before your expected week of childbirth, you will lose your entitlement to SMP for that week and for all remaining weeks of the maternity pay period.

What do I do if my flexible working request is turned down?

There are two ways to make a flexible working request – you can make it informally by simply speaking to your manager, or formally by following a formal statutory procedure which gives you greater rights.

If you made a formal flexible working request, which has been rejected, you are only legally entitled to make another request after 12 months has passed from the date you made your original request. Alternatively, you have the right to appeal against the previous decision.

A formal request must be in writing and dated and must:

  • State that the application is being made under the statutory right to request flexible working;
  • Detail the changes requested and the date it is proposed that such changes should become effective;
  • Explain what effects you consider such changes will have on the Company and how these may be dealt with;
  • Confirm the relationship between you and the child.

Your employer must hold a meeting with you to discuss your flexible working request within 28 days of the date of your application. This will give both parties an opportunity to consider how the application may be accommodated. You will have the right to be accompanied to the meeting by a fellow colleague.

Your employer must provide you with a final decision, in writing, within 14 days of the date of meeting. If your request is granted, the letter must specify the variation agreed and the date on which it will take effect.

If your request is refused, the refusal must be based upon one of the following statutory grounds:

1. The burden of additional costs
2. Detrimental effect on ability to meet customer demand
3. Inability to re-organise work among existing staff
4. Inability to recruit additional staff
5. Detrimental impact on quality
6. Detrimental impact on performance
7. Insufficiency of work during the periods you propose to work
8. Planned structural changes

The refusal notice must set out which ground(s) apply and provide a sufficient explanation as to why these apply. If your request is refused, you have the right to appeal.

Under the statutory procedure, you must appeal within 14 days. You should refer to the reasons for refusal and try to offer counter-arguments as to how you feel that the issues could be resolved.

It may be the case that your employer does have a genuine business ground for refusing your request, and if this is the case you would need to consider your options, i.e. whether you can, for example, make any necessary childcare arrangements or whether you want to consider seeking alternative employment.

If by the end of the procedure your request has been refused and you do not believe that the employer has properly established a business ground, you could have potential claims for constructive unfair dismissal (if you decide to resign as a result of this), breach of the statutory flexible working procedure and / or sex discrimination.

I am facing a restructure. What are my rights?

As an employee currently on maternity leave, there are special rules which apply to you in a redundancy/restructure situation.

This is because employees on maternity leave enjoy protection under the Maternity and Parental Leave (MPL) Regulations. The Regulations state that, where there is a suitable alternative role, an employee on maternity leave is entitled to be offered this role in preference to other employees provided it is suitable.

A suitable role

  • Is suitable in relation to you and it is appropriate for you to do in the circumstances; and
  • The terms and conditions of the new role are not substantially less favourable than if you had continued to be employed under your current contract

If the role is suitable based upon the points above and your employer refuses to offer it to you, then your dismissal would be automatically unfair and you would be entitled to bring a claim in the Employment Tribunal against your employer for unfair dismissal and also sex discrimination.

It may be the case that your employer considers another role to be suitable even if that involves a reasonable change of location.

If you then refuse the role unreasonably, you would lose your entitlement to a redundancy payment. You must also consider whether anybody else on maternity leave may be putting themselves forward for the role that you are considering. If this is the case, obviously your employer would then have to make a decision about who is best suited to the role and must continue to consider suitable alternatives for the unsuccessful applicant.

In the event that there are no suitable alternative vacancies, the redundancy process would continue and you could be made redundant. You would then be entitled to a redundancy payment and possibly your notice pay depending on whether you are entitled to statutory notice or a longer period of notice.

Going back on a flexible work agreement

Employees with children under 16 years old have the right to request flexible working arrangements with their employer. If your employer agreed to a request for flexible working hours before you left on maternity leave they have agreed to a change in an employee’s terms and conditions.

This becomes a permanent change in the employment contract going forward. It doesn’t make any difference if the line leader has changed, it is still a new binding term in your employment contract.

Legally therefore, an existing employment contract can only be varied with the agreement of both parties. So if your employer wants to alter your employment contract, he or she will have to formally consult with you and try to get you to agree to the changes.

If they cannot, then your employer would have to terminate your employment and rehire you on new employment terms that you can either accept or reject.

This is not ideal for you since there is the risk that you lose your job. Depending on your circumstances, you could have a claim for discrimination if you feel that you have been unfairly treated.

The best way forward is to get some legal advice, for instance, ACAS offers a free, confidential, independent phone helpline where you discuss your situation in more detail and then they might recommend if it is worth you getting legal advice through a solicitor. Monday-Friday, 8am-8pm and Saturday, 9am-1pm: 08457 47 47 47.

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