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Lucie Mitchell

Sift Media

Freelance journalist and former editor of HRZone

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Ask the expert: Return from maternity leave

A maternity returner failed to give the required eight weeks’ notice to confirm her wish to return to work, and wants to decrease the days she works, which may not fit the needs of the business. Martin Brewer and Esther Smith advise on how to reach a compromise.

The question:

I have a bit of an unusual situation. We have a lady who wishes to return to work at the end of her paid period of maternity leave (nine months). She has given us less than the required eight weeks’ notice, but when informed of this she claimed she did not know. However, we thought it may suit us if agreement could be reached and she was informed of this.
Before maternity leave, she worked three days per week (the result of a previous return to work agreement). We actually wanted her to return to these three days, although we were willing to be flexible over which days as long it fitted with business needs. But she is asking if she can return for two days only, and not on days that we need her most. I would like to reach a compromise, but due to the needs of the business I am running out of negotiation room. Any advice or thoughts?

Legal advice:

Martin Brewer, partner, Mills & Reeve

First, if your employee has failed to give the correct eight weeks’ notice, then you have the right to postpone her return date in order to secure the required 8 weeks’ notice provided this date is not later than the date that additional maternity leave (AML) would have ended normally.  This means that if the employee does wish to return early and would not want a delay, you do have a potential for negotiating with her as you could decide not to insist on the 8 weeks’ notice.  The right to return after AML is the right to return to the same job on no less favourable terms.  In this case her right is to return to working three days each week so in essence she is seeking a variation to her terms and conditions. 
To do this the employee and you must follow the procedure for requesting and considering flexible working set out in the relevant legislation and regulations (you should seek detailed advice about these).  If she does make a valid request then you have to consider the request and can only refuse it on certain specified grounds.  You also have to be wary of sex discrimination in refusing a maternity leave returner flexible working if the reason is childcare.  So in summary, yes you can negotiate and if a proper request is made for flexible working you can refuse for specified business reasons (which include such things as the burden of additional cost, detrimental effect on ability to meet customer demand, detrimental impact on performance etc).
The practical way forward is to discuss this with your employee, explain the needs of the business and if you have a genuine business need for her to work three days, insist on it.  If you can be flexible on which days, that may help and certainly shows you being reasonable.  You might be tempted to consider a short period, say no more than three months, of two days working followed by an increase to three.  If you are going to consider this bear in mind it is not without difficulty, because if at the end of the three months the employee seeks to renege on the deal and wants to remain on two days, and if you have managed for three months on that basis, you may find it difficult to argue that you have a real business need for her to work three days.

Martin Brewer can be contacted at [email protected] . For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar

The first thing to say here is that the right to return at the end of a period of maternity leave is automatic, and the eight-week notice only applies if an employee wishes to return any earlier than the end of her full entitlement to either ordinary or additional maternity lave. However it appears that this lady wished to return when her nine-month period of statutory maternity pay ended, which falls in the middle of her additional maternity leave, and therefore she should have given notice. Without the requisite notice the employer can legitimately postpone the return until the eight-week notice period has expired.
However, the main issue here appears to relate to her flexible working request. Under the current rules there are grounds on which you can legitimately reject a flexible working request, which can include burden of additional cost, detrimental effect on ability to meet customer demand, inability to organise work among existing staff, detrimental impact on quality, insufficiency of work during periods employee proposes to work and / or planned structural changes. Therefore, if your reasons for not wanting to agree to her request fit into one of those categories you should be ok in rejecting her application. 
If you do want to try and compromise with her, you could agree to her two days but argue for those two days to be on two of the three days she used to work, rather than the two days she wants. If she rejects that proposal she either has the choice of returning on her previous three-day-a-week basis or not returning.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.

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Lucie Mitchell

Freelance journalist and former editor of HRZone

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