Legal Q & A: handling returners from maternity leave

New
rules on returning to work after maternity leave and flexible working requests

Q
How can I find out whether an employee on maternity leave intends to return to
work?

A
If she is taking maternity leave under the old rules (if her due date was
before 6 April 2003), then you can write to her no earlier than 21 days before
the end of her 18 weeks’ ordinary maternity leave, asking for confirmation of
whether she intends to return.

Unless
she replies within 21 days, she will lose certain rights – such as the right to
claim automatic unfair dismissal – if she is not permitted to return at the end
of her maternity leave.

However,
if she is taking maternity leave under the new rules, there is no specific
right to ask whether she intends to return.

Nevertheless,
there is nothing to prevent you from contacting her and asking her to volunteer
what she intends to do, although there will be no adverse consequences for her
if she chooses not to reply.

Q
What should I do if she indicates that she does not wish to return?

A
If she is taking maternity leave under the old rules and, in response to your
request for confirmation of her intentions, 
replies that she does not wish to return to work, it is generally
considered that this will be sufficient to bring her employment to an end when
her period of maternity leave finishes.

However,
if her leave comes under the new maternity leave regime, and she volunteers
that she does not wish to return to work, this will not be enough to bring her
contract to an end.

Unless
her contract is formally terminated, there is always a possibility that she
will change her mind and exercise her right to return at the end of her
maternity leave.

To
avoid this situation, you could either ask her to give formal notice of
resignation or request her to confirm in writing that she consents to her
employment terminating by mutual agreement on a specified date.

Q
What should I do if she asks to return on a part-time basis or with different
hours?

A
If the reason for her request is related to her childcare arrangements, she
will be entitled to make an application under the new flexible working
provisions, provided she has at least 26 weeks’ service with your company and
has not made another flexible working application in the preceding 12 months.

She
should be advised of her right to make a formal application under the new rules
and, if she does so, it will be necessary to follow the procedure set out in
the regulations.

There
is no reason why the meetings to discuss her application cannot be conducted
while she is on maternity leave (although allowances may need to be made to fit
in with her childcare arrangements).

It
should be noted that, even if she is not eligible to make a formal request
under the regulations, she may still be entitled to bring a claim for sex
discrimination if her request is turned down without good reason.

Q
If we agree to her returning on a part-time basis, what terms should she be
offered?

A
In the absence of a specific contractual right, there is nothing in the
maternity rules which requires her to be offered the same terms and conditions.

However,
by virtue of the Part-time Workers Regulations 2000, she will be entitled to
terms and conditions that are no less favourable than her terms and conditions
prior to her maternity leave, unless the difference can be justified. Offering
less favourable terms to part-timers may also amount to indirect sex
discrimination.

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