Post natal depression and return to work

Lawyer Louise Taft explains your rights if you are returning to work after suffering from post-natal depression.

Sadly, 10-15% of new mothers experience Post Natal Depression. It usually develops in the first four-six weeks after childbirth, although sometimes it can take several months. If recognised and treated, it is a temporary condition from which the mother should recover.

Research suggests that women returning to work less than six months after childbirth have a higher instance of Post Natal Depression than women with babies of the same age who have not returned. However, once children reach 12 months, the situation is reversed, with a higher incidence amongst those who have not returned to work. The introduction of Shared Parental Leave in 2015 may lead to more mothers returning to work before babies are six months old and therefore more occasions of women in the workplace suffering from Post Natal Depression.

All mothers are entitled to up to 52 weeks maternity leave. A mother can also take up to 18 weeks unpaid parental leave if she has been continuously employed for at least a year. The time spent on maternity leave counts towards this year. If using the default parental leave scheme, an employer may limit the leave to four weeks per year and can postpone the leave for up to six months if the needs of the business require it. Employees accrue holiday whilst on maternity leave and might request holiday to immediately follow leave.

Nevertheless, some mothers might still be suffering with Post Natal Depression as their entitlement to maternity leave, parental leave and holiday is exhausted. Alternatively, a mother might not want to take unpaid maternity or parental leave or exhaust her holiday entitlement whilst she is sick. If she is too unwell to return to work, usual provisions as regards sickness absence will apply. Unlike whilst pregnant, there is no special protection for employees who are sick following maternity leave, even if the sickness is related to childbirth. Employees are required to notify the employer of sickness and provide sick notes as normal. They will be entitled to sick pay in line with the terms of the contract and SSP if there is no contractual provision.

If absence is for a significant time, the employer may want to implement a sickness absence procedure. They will want to know when the employee is likely to be able to return to work and whether any adjustments to the role might enable her to return sooner. They may request a GP report or refer to Occupational Health. If they don’t have confirmation that she is likely to return to work in the foreseeable future, they can legitimately make a decision to terminate employment.

Depending on its severity and length, employees suffering from Post Natal Depression might have rights conferred on disabled employees by the Equality Act. To qualify, the condition needs to have lasted or be expected to last at least 12 months and have a substantial impact on day to day “activities” (ignoring the effects of any treatment). Whilst most women suffering with Post Natal Depression will not meet this test, it can be serious enough to qualify.

Employers have a duty to consider reasonable adjustments for disabled employees if these would enable them to return to work. This might include a phased return or returning to a less stressful role. This is completely separate to any request for flexible working, which needs to be seriously considered. Employees also have the right not to be discriminated against because of disability or because of a reason arising from the disability, unless this can be justified.

*Louise Taft is a senior Solicitor at Prolegal and has spent the past 10 years dealing with Employment Tribunal claims  on behalf of both Claimants and Respondents. She has a particular interest in claims involving Discrimination and Whistleblowing. For more information,Louise can be contacted on 0800 999 5005 or visit www.prolegal.co.uk 

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• Maternity & Parental Leave