One of my factory employees is due back soon from maternity leave. I undertook a risk assessment before she went on leave, but is there anything I need to be aware of when she returns to work?
The need to tread carefully here is obvious. Returning to work can be a daunting process, especially if your employee was away for a whole year’s maternity leave. Before any of the legal issues considered below, you should do what you can to reassure your employee that you are pleased to see her and that your door is open should she have any concerns in the immediate aftermath of her return. A “how’s it going?” after a week or so can be very valuable.
If any new processes or equipment have been introduced since your employee went on leave, offer her the appropriate training. You can encourage her to undertake this on keeping-in-touch days before her official return, but you cannot compel this. If she is generally a little “slow off the blocks” immediately after her return, whether new processes are involved or not, this should not lead to formal performance-management steps until she has had a chance to get back up to speed.
You are required to take reasonable steps to procure a safe system of work for your staff. This includes the assessment of risks applicable only to particular groups, including new mothers. It may be worth looking at the comments and experiences of past maternity returners to help identify any particular concerns. If health reasons prevent your employee returning to her old job, then consider and discuss with her whether or not there is any alternative, as above. If there is a risk to her health and safety that cannot be avoided, you may need to suspend her with pay.
Your employee may make a flexible working application, seeking reduced days or hours. You are allowed to reject this if there is a good business reason to do so, but this will not include the fear of setting a precedent for others or any untested assertion that “it just won’t work”. Follow the statutory timetable for the consideration of flexible working applications if you want to avoid a claim, however good your reasons for rejecting the application. If in any doubt, offer the flexible arrangement your employee seeks on an expressly trial basis – remember that in practical terms the onus is on you to show that the arrangement sought would not work, and not for her to show that it would. Keep a record of your thinking in this regard.
It may be that your employee’s new hours/days requirements will not suit her old job but could be made to work in a new one. Discuss the alternative position with her even if it would entail a demotion or drop in pay. The decision as to what level of role she would accept in order to keep her employment is hers, not yours.
Jokes about breast-feeding, childbirth and babies wear thin very rapidly, especially for recent mothers. Even meant wholly without malice, they may still constitute sexual harassment. Similar comments casting doubt on her commitment if she returns part-time may also lead to a claim. It would therefore be sensible to put a discreet written “shot across the bows” of any of your staff who you believe might be tempted to say something inappropriate. This way you may prevent any harassment of your returning employee, or at least limit your liability for it.
David Whincup, partner and London head of employment, Hammonds LLP
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