Maternity leave and pay

An employee is entitled to return to the same job that she had before going on statutory maternity leave (SML) if she only took ordinary maternity leave (OML), ie the initial 26-week period of SML. The rules are different where an employee takes all or some of her additional maternity leave (AML), ie the second 26-week period of SML.

Returning to work after OML

An employee who returns to work during or at the end of her OML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.

If you prevent an employee from returning to work, she may make a complaint of unfair dismissal and sex discrimination to an industrial and fair employment tribunal.

If she returns to work but you do not give her old job back, she may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in an industrial tribunal claim for sex discrimination or detrimental treatment

See maternity leave and protection against detriment or dismissal.

Returning to work after AML

An employee who returns to work during or at the end of her AML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.

However, if it is not reasonably practicable for you to let her return to her old job, you should offer her a job:

• that is both suitable and appropriate for her to do in the circumstances
• on terms and conditions that are no less favourable than those for her original job

If you offer the employee a job that fulfils the criteria above and she unreasonably refuses it, she will have effectively resigned.

If you offer the employee a job that does not fulfil the criteria, she may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in an industrial tribunal claim for sex discrimination or detrimental treatment

You should try to consult with employees during their SML about any proposed changes to their jobs in preparation for their return. See contact and work during maternity leave.

Taking parental leave after SML

Employees who qualify for parental leave may take some of this leave immediately following the end of their SML.

An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:

• it is for four weeks or less
• it is not preceded by any AML

If the parental leave period is for longer than four weeks and/or is preceded by a period of AML, the employee is treated as though they were returning to work after AML. See parental leave and time off for dependants.

Breastfeeding

Your health and safety obligations towards a breastfeeding employee are the same as they were when the employee was pregnant.

Pregnant workers and breastfeeding mothers are entitled to more frequent rest breaks. You should talk to them so you can agree on the timing and frequency.

You must provide a suitable area where a breastfeeding employee can rest. It should:

• include somewhere to lie down if necessary
• be hygienic and private so they can express milk if they choose to - toilets are not a suitable place for this
• include somewhere to store their milk, eg a fridge

See breastfeeding and the workplace.

Pregnancy during SML

If a woman becomes pregnant during her SML, she must notify you of this in the normal way - see notification and confirmation of maternity leave.

It is possible for her subsequent period of SML to begin as soon as the current one ends. In these circumstances, her rights on her eventual return are the same as they would have been had she just taken a single period of SML.

Flexible working requests

An employee returning to work may make a request to work flexibly, eg to change start or finish times, work from home, or do part-time hours. If possible, you should discuss this with the employee prior to SML, or during the keeping in touch process. Read more on flexible working: the law and best practice.