MATERNITY RIGHTS (PL958 Rev 9)
A guide for employers and employees

Section 7: Return to work after maternity leave

The intended date of return to work after ordinary or additional maternity leave

Unless otherwise notified, the date on which the employee returns to work will be:    

• the first working day after the end of her 26 weeks’ ordinary maternity leave period; or  

• if she qualifies for additional maternity leave, the first working day after the end of her 52 weeks' ordinary and additional maternity leave combined; or  

• within any longer leave period allowed on a voluntary or contractual basis by her employer.  

Return to work before the end of ordinary or additional maternity leave    

• If the employee intends to return to work before the date her employer notified her of (which will be the date her additional maternity leave ends, unless she didn't qualify for this, in which case it will be the date her ordinary maternity leave ends) she must give her employer 28 days' notice of the date of her return. This notice does not have to be in writing.  

• Where an employee qualifies for additional maternity leave, but only wishes to take the 26 weeks' ordinary maternity leave she must give her employer 28 days' notice of her return to work because she will be returning to work before her full maternity leave entitlement has ended.     

• If the employee attempts to return to work earlier than the end of her ordinary or additional maternity leave without giving her employer 28 days’ notice, her employer may postpone her return until 28 days’ notice has been given.  

• The employer may not postpone her return to a date later than the end of her ordinary or additional maternity leave.  

• An employee whose return has been postponed under these circumstances is not entitled to receive wages or salary if she returns to work during the period of postponement.

• Exceptionally, the employee is not obliged to give 28 days' notice of her early return if her employer didn't give her appropriate notification of when her leave should end (see Section 6)

Return to work at the end of ordinary maternity leave  

If an employee is entitled only to ordinary maternity leave and intends to return to work immediately after the end of it she does not have to give notice of her return.  

Return to work at the end of additional maternity leave  

If an employee is also entitled to additional maternity leave and intends to return to work immediately after the end of it she does not have to give notice of her return.

Sickness at the end of ordinary or additional maternity leave  

Where an employee is unable to attend work at the end of her ordinary or additional maternity leave due to sickness, the normal contractual arrangements for sickness absence will apply, for example, she should notify her employer in the normal way.  

If an employee can't return to work because of a pregnancy-related illness - for example post-natal depression - both employer and employee should talk to Acas about the situation. In particular, employers should be aware that employees may have protection under the sex discrimination legislation if they are disciplined or dismissed in such circumstances.

Employees who do not wish to return to work after maternity leave  

An employee who does not wish to return to work after her ordinary or additional maternity leave must give her employer the notice of termination required by her contract of employment, or where there is none, the statutory notice16.

Section 8: Rights on and after return to work from maternity leave

Return to work after ordinary maternity leave  

An employee who resumes work after ordinary maternity leave is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent, unless a redundancy situation has arisen, in which case she is entitled to be offered a suitable alternative vacancy (see Section 9 on redundancy). An employee who is not given her job back at the end of ordinary maternity leave is entitled to make a complaint of unfair dismissal to an employment tribunal (see Section 12).  

Return to work after additional maternity leave  

After additional maternity leave an employee is entitled to return to work to the same job, on the same terms and conditions as if she had not been absent. However, if there is some reason why it is not reasonably practicable for her to return to the same job she should be offered a similar job on terms and conditions which are no less favourable than her original job. This right varies where an employee works for a firm employing five employees or less. See below, Circumstances where dismissal at the end of additional maternity leave will not be unfair.

Return to work after ordinary maternity leave followed by parental leave  

Employees who have completed one year’s service with their employer, whether before or during a period of maternity leave, may be entitled to parental leave which may be taken immediately after ordinary maternity leave (subject to the notice requirements for taking parental leave - for more information see Parental leave: a guide for employers and employees (PL509)). An employee returning to work after ordinary maternity leave followed by a period of parental leave of four weeks or less is entitled to return to her original job on the same terms and conditions as if she had not been absent. 

An employee who takes a period of parental leave of over four weeks immediately after the end of ordinary maternity leave is entitled to return to the same job on the same terms and conditions as if she had not been absent, unless that is not reasonably practicable, in which case she is entitled to be offered a similar job. Terms and conditions relating to parental leave may vary depending on whether an employee is subject to the statutory fallback scheme or whether a workforce, collective or individual agreement is in place - for more information see Parental leave: a guide for employers and employees (PL509).

Return to work after parental leave taken immediately after the end of additional maternity leave    

An employee who takes a period of parental leave immediately after a period of additional maternity leave is entitled to return to her original job or, if it is not reasonably practicable for her to return to that job, to another which is similar.

Employees who return to work after two consecutive periods of maternity leave

It is possible that an employee who takes her full entitlement to maternity leave of 52 weeks may become pregnant while on leave and become entitled to another, consecutive period of leave without returning to work. An employee who takes two consecutive periods of maternity leave which include one or more periods of additional maternity leave is entitled to return to her original job or, if this is not reasonably practicable, to another which is similar.

Offer of similar job after additional maternity leave  

Where there is a reason which makes it impracticable for the employee to be taken back in her original job, a similar job must be found for her. The new job must be such that:    

• the work to be done by the employee is both suitable and appropriate for her to do in the circumstances; and  

• the capacity and place in which she is to be employed and the other terms and conditions of her employment are no less favourable to her than if she had continued to be employed in her old job.

Note that:  

• If the offer made is suitable and the employee refuses she will have effectively resigned.  

• If the offer is not suitable the employee may bring a complaint of unfair dismissal to an employment tribunal.  

In all cases, employers should also ensure that transfers to alternative work are lawful under the Sex Discrimination Act 1975 (see Section 11).  

Return to work part-time after maternity leave and the right to request flexible working patterns  

There is no specific statutory right for a woman to change her working conditions, including hours of work, on return to work from maternity leave, unless this is provided for in her contract of employment. However, from 6 April 2003, employees who are parents of young children have the right to request flexible working patterns. Employers are required to give such requests serious consideration. In order to qualify for this right a parent must:

• be an employee;

• have a child under 6, or 18 where the child is disabled;

• be responsible for the child as its parent or as the partner of the parent (including adoptive and foster parents);

• be making the application to enable them to care for the child;

• have worked for their employer continuously for 26 weeks at the date the application is made; and 

• have not made another application to work flexibly under the right during the past 12 months.

If the request is agreed, this will form a permanent change to the employee's terms and conditions to incorporate the new working pattern. For further information, see Flexible working - the right to apply: a basic summary (PL516).

There may be circumstances where a refusal to permit a woman to return to work part-time amounts to unlawful indirect sex discrimination. Employees may complain of indirect sex discrimination if they believe that the proportion of women (or men) who can comply with a provision, criterion or practice imposed by their employer is considerably smaller than the proportion of men (or women) who can comply with it. For example, it may be more difficult for female employees to fulfil the requirement to work full time than it would be for male employees because of their childcare responsibilities. In such circumstances an employer would have to show that there were objective reasons, which had nothing to do with her sex, for requiring her to work full-time. Further information on indirect sex discrimination is given in Section 11.

Employees may wish to contact the Equal Opportunities Commission for further advice. Employers in England can contact Equality Direct for further advice. 

Dismissal on or after return to work after maternity leave  

An employee who is dismissed during or after the end of a maternity leave period, or selected for redundancy in preference to other comparable employees, solely or mainly because she has taken maternity leave or availed herself of the benefit of the terms and conditions of employment to which she was entitled during that leave is entitled to make a complaint of unfair dismissal to an employment tribunal (see Section 12). It is unlawful to dismiss in certain circumstances where an employee fails to return from her maternity leave on time because her employer has given inadequate or no notification of the end date of her leave (see Section 3)

Dismissal, selection for redundancy or other detrimental treatment in these circumstances may also amount to unlawful discrimination on grounds of sex or marriage (see Section 11).

Circumstances where a dismissal at the end of additional maternity leave will not be unfair:

An employee who is not given her job back, or offered a suitable alternative job, at the end of additional maternity leave will not be regarded as unfairly dismissed if the employer can show an employment tribunal that:    

• her original job was no longer available because of redundancy and there was no suitable alternative work available which could be offered to her; (see section 9)  

• it was not reasonably practicable (on grounds other than redundancy) for her to be taken back in her original job or a similar job and an associated employer had offered her suitable alternative employment which she had either accepted or unreasonably refused; or  

• it was not reasonably practicable for her to be taken back in her original job or to be offered a similar job and that the employer (together with any associated employers) employed only five or fewer people (including the employee herself) at the point when her additional maternity leave period ended.  

Employers should however ensure that they are acting lawfully under the Sex Discrimination Act 1975 (see Section 11).

Dismissal on grounds unrelated to maternity leave  

An employer may dismiss an employee on grounds largely or wholly unrelated to the fact that she has taken or availed herself of the benefits of maternity leave, unless the dismissal is unfair for some other reason or amounts to discrimination on grounds of sex or marriage (see Section 11).  

Further guidance on unfair dismissal can be found in Unfairly dismissed? (PL 712) and Dismissal – fair and unfair: a guide for employers (PL 714). If the dismissal is on grounds of redundancy, the employee may be entitled to a redundancy payment, and further guidance can be found in Redundancy entitlement (PL 808).

Terms and conditions on or after return to work

Ordinary maternity leave  

An employee returning to work after ordinary maternity leave is entitled to have the same job and the same terms and conditions as if she had not been absent (unless a redundancy situation arose during her maternity leave – see Section 9).  

An employee resuming work after ordinary maternity leave is entitled to benefit from any general improvements to the rate of pay (or other terms and conditions) which may have been introduced for her grade or class of work while she has been away.

Additional maternity leave

An employee returning to work after additional maternity leave is entitled to have the same job back on the same terms and conditions, except where a redundancy situation has arisen (see Section 9), or there is some other reason why it is not reasonably practicable for the employer to take her back in her original job. In these circumstances she is generally entitled to be offered a similar job which has the same or better status and terms and conditions as the old job.  

Unlike the period of ordinary maternity leave, the additional maternity leave period is not required to be counted for the purpose of assessing seniority, pension rights and other personal length-of-service payments (unless the employee’s contract of employment provides for service to accrue during additional maternity leave for the purposes of contractual benefits). In these circumstances the period of employment before the start of additional maternity leave will be treated as ‘joined up’ with the period of employment on her return to work as if they were continuous. 

An employee resuming work after additional maternity leave is entitled to benefit from any general improvements to the rate of pay (or other terms and conditions) which may have been introduced for her grade or class of work while she has been away as if she had not been absent.

Variation of terms and conditions of employment  

Any variation to the terms and conditions of employment, such as hours of work, must be agreed between the employer and the employee, unless the contract of employment specifically allows for changes without agreement. This means that an employer may not in general impose less favourable terms and conditions upon an employee who resumes work after maternity leave, and an employee in these circumstances may not in general demand more favourable terms and conditions. It is however unlawful to discriminate against a woman on the grounds of sex in relation to her terms and conditions (see Section 11). It should also be noted that employees have a right to request flexible working hours - see Return to work part-time after maternity leave and the right to request flexible working patterns earlier in this section.

Complaints about variation of terms and conditions  

An employee whose employer unilaterally makes detrimental changes to her terms and conditions of employment may obtain redress through the civil courts by claiming damages for breach of contract. Public funding is available for those who meet the qualifying conditions17.

An employee in these circumstances may also be entitled to resign and make a complaint of constructive unfair dismissal to an employment tribunal (see Section 12 for further details). Before taking any such action, however, it is normally advisable to obtain legal or other professional guidance, perhaps from a local Law Centre or Citizens Advice Bureau.  

If the breach of contract amounts to an unauthorised deduction from the employee’s wages, this could also form the basis of a complaint to an employment tribunal. Further details can be found in Contracts of employment (PL 810).    

A breach of contract in these circumstances may also give rise to a claim under the Equal Pay Act 1970. For further information, consult the booklet Equal pay: a guide to the Equal Pay Act 1970 (PL743) available from the DTI Publications Orderline.

All these rights apply regardless of the employee’s length of service

Section 9: Redundancy during maternity leave

If a redundancy situation arises during an employee’s ordinary or additional maternity leave which makes it impracticable for the employer to continue to employ her under her original contract of employment, she is entitled to be offered (before that contract ends) a suitable alternative vacancy, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer. The new contract must take effect immediately on the ending of the original one and must be such that:    

• the work to be done by the employee is both suitable and appropriate for her to do in the circumstances; and

• the capacity and place in which she is to be employed and the other terms and conditions of her employment are not substantially less favourable to her than if she had continued to be employed under the original contract.  

It is unlawful for an employer to make an employee redundant during the ordinary or additional maternity leave period without first complying with these requirements. An employee made redundant in these circumstances is entitled to make a complaint of unfair dismissal to an employment tribunal (see Section 12 for further details).  

If the employer has a suitable alternative vacancy available but fails to offer it to the employee, the redundancy dismissal will be regarded as an unfair dismissal. 

If the employer offers the employee a suitable alternative vacancy and she unreasonably refuses it, she may forfeit her right to a redundancy payment. Further guidance can be found in the document Redundancy entitlement (PL 808).

Entitlements on redundancy during maternity leave  

If an employee on ordinary or additional maternity leave is made redundant, whether lawfully or unlawfully, her maternity leave period comes to an end. The employee is entitled to receive from her employer a written statement of the reasons for her dismissal, regardless of whether or not she has requested one, and regardless of her length of service. If her employer fails to provide a statement, or provides one that she considers to be inadequate or untrue, she may make a complaint to an employment tribunal. The employee should also receive her normal notice entitlement, or pay in lieu of notice (see Rights to notice and reasons for dismissal PL 707).The employee may additionally be entitled to a redundancy payment (see Redundancy entitlement PL 808).  

The employee will still be entitled to receive Statutory Maternity Pay for up to 26 weeks once she has qualified for it (see Section 5).

16 See document  Rights to notice and reasons for dismissal (PL 707).

17 See the Legal Aid Board booklets ‘How to get free or low cost legal help’ and ‘a practical guide to legal aid’.

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Last updated 21 January 2004