Entitled to return to work to the job in which she was employed before her absence with her
seniority, pension rights and similar rights, and terms and conditions which are no less
favourable than before.her OML. It also counts towards her period of continuous
Failure to return after OML
Will not terminate contract of employment, court will look at intention of employee. If she
intended not to return then they will interpret her act as terminating the contract. Failing any
intention, employers will need to discover the reason for a late return before taking action.
Failure to treat her the same as any other late returner could lead to discrimination or UD.
Compulsory ML Employer must not let a woman return to work within the 2 week period from childbirth, it is a criminal offence.
If at the start of the 14 th week before EWC, a woman has completed 26 weeks continuous employment, she will be entitled to AML. It will commence on the day after the last day of
OML and continue for up to 26 weeks. She does not have to tell her employer her intention to take this when she notifies him of her OML.
Rights during AML – Check the Notary Public London website
Employment contract continues throughout AML, including certain terms and conditions, for
example the benefit of her employerâ€™s mutual trust and confidence, terms of termination of
her contract, compensation in event of redundancy and disciplinary and grievance
procedures. The woman is bound by good faith and any termination terms of her contract.
The woman is not entitled to remuneration or benefit of normal terms and conditions.
Returning to work after AML
No notice needed if return intended at end of AML, however 28 days notice is needed if she
wishes to return sooner. Again, if she fails employer entitled to postpone her return for up to
Statutory right to return to the job in which she was employed before or if not reasonably
practicable for the employer to allow her to return to that job, for a reason other than
redundancy, to a suitable and appropriate job on no less favourable terms and conditions,
pension rights etc.
If the offer is not suitable, the woman can bring a complaint for UD and perhaps sex
An employee who wishes to return on different terms and conditions ie part time, may do so
as they may have a claim for indirect sex discrim if employer refuses, there is no statutory
Sickness at end of OML or AML
Where unable to return to work after OML or AML due to sickness, the normal contractual
arrangements for sickness will apply. She will be treated like any other employee.
Dismissal â€“ Special Protection Redundancy
ï‚· During O or AML, if itâ€™s not practicable for the employer, by reason of redundancy, to
continue to employ the woman under her existing T&C, she must be offered any
suitable alternative vacancy (SAV), even if sheâ€™s not the most suitable candidate.
ï‚· If thereâ€™s no s.a.v. then she must be objectively selected for redundancy. If the
woman is dismissed by redundancy, due to her pregnancy or by non compliance with
this provision, then it will be UD.
Dismissal â€“ special protection Automatically Unfair Dismissal s99 ERA; s1 SDA
ï‚· A woman who is dismissed is entitled under s99, to be regarded as UD if the reason
is connected with:
a) pregnancy of employee;
b) the fact that she has given birth and the dismissal ends the womanâ€™s
OML or AML period;
c) the fact that she is on maternity suspension;
d) the fact that she took OML or sought to take it or availed herself of the
benefits of any T&Cs;
e) the fact that she took or sought to take AML;
f) failed to return after O or AML where employer did not give an end date
of her O or AML, or employer gave less than 28 days notice of end of O
or AML and it wasnâ€™t practical for her to return.
ï‚· Reasons a) and b) above, apply protection to the end of OML or AML;
ï‚· c-f) reasons extend beyond.
ï‚· Employee is not required to prove her dismissal was for one of the above reasons,
she only has to adduce evidence to create a presumption, and if the employer is
arguing the reason was other than the pregnancy then it is up to him to prove this.
If the reason is found to be within one of the above, the employer cannot argue it
was reasonable and it will be automatically unfair.
o small employer, ie less than 5 employees (cos not practicable to come back);
o some other substantial reason (SOSR);
o no suitable alternative vacancy (SAV).
o REMEMBER â€“ for direct D the e/er cant plead justification unless heâ€™s a small
e/er (as above)
ï‚· If woman dismissed during her pregnancy or during her O or AML then if based on
her pregnancy that will be discriminatory on grounds of sex without need for male
comparator â€“ direct discrimination on grounds of sex. Neil Buzzard reckons this is
actually indirect D cos itâ€™s not cos sheâ€™s a woman its cos sheâ€™s pregnant.
ï‚· If woman is dismissed after O or AML then it may be discriminatory, but court will
have to consider whether she was treated less favourably than a man was or wouldÂ have been treated (ignoring time off work whilst on ML) therefore need aÂ comparator.