Right to return

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

employment.

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.

AML Period

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 employer’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

28 days.

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

discrim/wrongful dismissal.

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

right.

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.

3

Dismissal – Special Protection Redundancy

 During O or AML, if it’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 she’s not the most suitable candidate.

 If there’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 – special protection Automatically Unfair Dismissal s99 ERA; s1 SDA

RB197, 9.9

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 woman’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 wasn’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.

ï‚· Defence:

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 – for direct D the e/er cant plead justification unless he’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 – direct discrimination on grounds of sex. Neil Buzzard reckons this is

actually indirect D cos it’s not cos she’s a woman its cos she’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 would have been treated (ignoring time off work whilst on ML) therefore need a comparator.

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Maternity Rights

Exam Question checklist

 What rights does the employee have?

 Are there any defences for the employer denying those rights?

 What are the consequences of the employer denying rights?

 What advice?

Rights – See also, The award winning abogados de accidentes website

New law applies to all women whose babies are born on or after 6 April 2003. Law contained

in ERA 1999 and the Maternity and Parental Leave Regulations 2002.

Every pregnant woman is entitled to up to 26 weeks ordinary maternity leave (OML). Women

with 6 months continuous employment are entitled to additional maternity leave (AML). AML

commences on the day after the last day of a woman’s OML for up to 26 weeks from the day

it began.

Notices

15 weeks before expected week of childbirth (EWC) the woman is supposed to inform her

employer of her pregnancy, the EWC, the date on which she intends to start her OML. If she

wants to postpone the start date, she must give at least 28 days notice before the date

previously notified. If she wants to start leave earlier, 28 days notice before new start date.

If not correct notice, she may not be able to start on the intended date.

OML period

Earliest date is the 11 th week before EWC, so can start OML 11 weeks before EWC and have

15 weeks after EWC, or she could take 6 weeks before and 20 weeks after or work up to the

birth and have 26 weeks after.

However if she is absent from work wholly or partly because of her pregnancy in the 4 week

period before EWC, she will have to start her leave on that date.

OML is automatically triggered where childbirth occurs before the date notified.

Employer must, once notified of employee’s OML start date, notify employer of her OML or

AML end date.

Rights during OML

Contract of employment continues, entitled to benefit of terms and conditions of employment

which would have applied if not absent (except remuneration). If employer denies her these

benefits the he will be in breach and it will be discriminatory if based on fact of pregnancy.

Returning to work after OML

She returns to work at the beginning of the 27 th week, no notice is needed.

If she wants to return before the end of the 26 th week, she must give 28 days notice, if she

fails her employer can postpone her return period so as to secure 28 days notice but cannot

extend it beyond the 26 week period. NB if employer not given notice of end date of OML

then will not be able to prevent her returning early.