Maternity leave and return to work
An Employee Is Returning From Maternity Leave
It should be straightforward. But the role has evolved, the team has changed, and the conversation about what the return looks like feels more complicated than either of you expected.
Why this situation is trickier than it should be
You kept things running while they were away. The team adapted. Processes changed. Maybe the role itself looks different now.
You want to be welcoming and fair. But you also have a business to run, and the return needs to work practically as well as legally.
The difficulty is that returning from maternity leave is one of the most legally protected employment situations there is. Steps that would be entirely reasonable in other contexts become significantly riskier here.
A flexible working request you handle badly, a change to responsibilities without proper consultation, or a comment that implies the employee's absence was a problem are all potential discrimination claims.
What can go wrong in this situation
- Changing the role without agreement creates a breach of contract and potential discrimination claim
- Refusing a flexible working request without proper consideration leads to an employment tribunal
- Making an employee on maternity leave redundant without following the correct process is automatically unfair dismissal
- Handling performance concerns in a way that appears connected to the leave itself creates discrimination risk
- A poorly managed return leads to a constructive dismissal claim as the employee feels pushed out
- The returning employee feels unsupported and leaves, creating a recruitment cost on top of a legal risk
How to manage this return properly
- 1
Have a proper return to work conversation
Before the employee returns, have a structured conversation about what the role looks like, any changes that have happened, and any flexible working requests. Do not wait until they are back on day one.
- 2
Handle any flexible working request formally
If the employee requests a change to hours or working pattern, this must be considered formally. You have a process to follow and specific grounds on which a refusal is permissible.
- 3
If the role has changed, consult properly
Do not present a changed role as a fait accompli. If the business has genuinely changed, consult with the employee, explain the reasons, and explore options. Keep records of the consultation.
- 4
Get advice before managing any performance concerns
If there are pre-existing performance concerns or concerns that emerge on return, handle them with great care and with professional advice. The legal bar for action in this period is higher.
Common questions
Questions business owners ask about this
What are my obligations when an employee returns from maternity leave?+
An employee returning from maternity leave has the right to return to the same job on the same terms and conditions, unless she has taken more than 26 weeks of Additional Maternity Leave, in which case she has the right to return to the same or a suitable alternative role. Changing the role, hours, or terms without agreement can amount to detriment or indirect sex discrimination.
Can I make an employee on maternity leave redundant?+
If a genuine redundancy situation arises during maternity leave, it is possible, but the employee on maternity leave has special protections. She must be offered suitable alternative employment before other employees are considered. Failing to do this is automatically unfair dismissal and potentially sex discrimination.
What if the role has changed significantly while the employee has been on leave?+
This is a common situation and needs to be handled carefully. You cannot simply impose changes on a returning employee. If the role has genuinely changed due to business needs, you will need to consult with the employee about what this means, consider whether suitable alternatives exist, and avoid any steps that could be seen as trying to ease the employee out.
What if the returning employee wants to come back part time?+
An employee returning from maternity leave has the right to request flexible working. You are required to consider the request seriously and can only refuse it on specific business grounds. Refusing without proper consideration creates sex discrimination and flexible working claim risk.
What if there are genuine performance concerns before or after the return?+
Performance concerns that arise during or after maternity leave need to be handled with particular care. Any process that appears connected to the maternity leave itself will be treated with heightened scrutiny. Getting advice before taking any steps here is strongly recommended.
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These situations often come up alongside each other.
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