Dealing with employees returning from Additional Maternity Leave (AML)

This week Samira Ali of SCE Solicitors discusses Additional Maternity Leave (AML).

I have noticed that many employers find it difficult dealing with employees returning from AML. The reasons I am given range from (a) they think that the replacement performed better than the returnee employee (b) they are undergoing a redundancy consultation process or (c) it’s simply not reasonably practical for the returnee employee to remain in the same role as prior to their maternity leave.

Generally the rule is where an employee is able to return to the same role (with the same terms and conditions) as that prior to their maternity leave then they should be allowed to do so, even if the temporary replacement seems to be performing a lot better than the returning employee.

Most employers are aware that pregnancy and maternity discrimination does not require comparators. So how should you deal with employees returning from AML?

Where it is not reasonably practicable to allow a return to their contractual role

It’s important to point out that if an employee returns to work after Ordinary Maternity Leave (OML) which is after 26 weeks of leave, you must allow them to return back to their contractual role. However the rights of those returning after AML are slightly different, if you are able to allow the employee to return to their contractual role then you should. If this is not ‘reasonably practicable’ then you should allow the employee to return to ‘another job which is both suitable for her to do in the circumstances’, under Regulation 18(2) of the Maternity and Paternity etc Regulations 1999 (the Regulations).

Ideally the role that you are offering them is on similar terms and conditions as their previous role, with the same level of seniority and pensions rights prior to her AML.

Redundancies

Where you are in the process of making redundancies, you should provide the returning employee with a suitable alternative employment (Regulation 10).

The new contract of employment must again be;

(a)  suitable and appropriate for her to do in the circumstances and

(b)  the provisions as to the capacity and place in which she is to be employed, and the other terms and conditions of her employment  are not substantially less favourable to her than if she had continued to be employed under the previous contract.

You must be careful, if you intend to rely on Regulation 10 as you will not be able to rely on Regulation 18.

A further consideration, which adds another layer (and a topic for another blog) is employees requesting flexible working term which businesses need to give genuine consideration to.

Staying out of the employment tribunal’s

Tribunals deal with the special protection afforded to women on maternity leave through what lawyers terms as an ‘objective test’. This means they look at  the need for an objective consideration of all the surrounding circumstances to establish whether the treatment complained of is on the ground of pregnancy or on some other ground (the causal connection test) and the status of a woman who returns to work after maternity leave.  So please ensure you bear this in mind when making decisions.

If you are dealing with an employee returning from any form of maternity leave and need further advice and assistance why not get in touch by either emailing Samira at samira.ali@scesolicitors.co.uk or 0113 350 4030.

Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with me or other professional counsel before acting on the information contained here.