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Returning To Work From Maternity Leave

The House of Commons has been debating whether it should allow MPs to breastfeed their children during debates and Prime Minister’s Questions. As ever, the usual array of opinions on the subject have come out: some think it is a woman’s right to breastfeed wherever she needs to, some don’t want to see it, and others have argued that whilst they support the principle they fear it will give the tabloid press a field day. So while they’re busy working that out, let’s remind ourselves of the key obligations for employers to consider when a mother returns to work after maternity leave.

Whilst it’s unlikely that a female employee will bring her baby to work with her (unless the employer provides crèche facilities),a breastfeeding mother does have the right to a clean, private and safe environment in which she can express milk. This must not be a toilet! Plenty of employers still slip up on this – in most companies it doesn’t take much to set aside a small room for this purpose once a day, especially to avoid a claim.

The mother should be able to store the expressed milk in a fridge at work, but make sure it is clearly-labelled (for obvious reasons!)

When a woman returns to work from maternity leave, she either has the right to return to the same job (if she returns within the first 26 weeks) or the same or similar work (on terms no less favourable) if she returns within the second 26 weeks. Some mothers take some of their unpaid parental leave straight after their maternity leave. As long as they follow the procedure to book it, they’re entitled to do so and to the same right of return from maternity as if they hadn’t taken the unpaid leave.

Once the mother returns from maternity leave, that is where the protection ends for any issues relating to pregnancy and maternity leave. If she suffers from post-natal depression after her return-to-work, although it could be classed as a disability, the maternity protection no longer applies. However, a situation arising after her return-to-work may relate to something that occurred during her protected period. You still need to keep a record of any issues that occurred during the maternity leave or the period between her falling pregnant and starting the leave.

There has been a lot of publicity over the last few years about women suffering discrimination when they return to work because of the maternity leave they took or their wish to work flexibly. I would agree that there are still too many instances where women returners are treated less favourably for a reason related to their pregnancy or maternity leave, but many employers try extremely hard to accommodate returners and it’s annoying that cases are often presented in quite a one-sided way in the press. Anyone with six months’ service has the legal right to request flexible working. Mothers returning with maternity leave arguably present a greater risk if you refuse, as they could claim maternity discrimination as well as the standard award for failing to follow a fair process in flexible working.

Regardless of whether the individual is a mother returning from maternity leave or a man who wants to go to a chess club every Friday afternoon, the right is to request flexible working, not to automatically get it. If the employer follows a correct and fair process, shows that it properly researched the practicality of the request, refuses on one or more of the seven fair reasons and, ideally, offers a compromise option, then the risk of losing a claim should be low. Employers tend to trip up by not undertaking sufficient research (e.g. not testing the market to see if a job share candidate could be found) or by making the old mistake of saying “if I let you work flexibly, they’ll all want to!”

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