Undermined, excluded and sidelined – these are just some of the situations working mums complain of when they return to work following a period of maternity leave. Annie Hayes reports on the emotional and legal battle.

In 2006 just over half of women (55 per cent) with children under five were in the labour force. These findings from the Office of National Statistics go a long way in highlighting the growing numbers of women that return to work following a period of maternity leave.

The cost of housing and household items has fuelled this return to work, together with a growing acceptance that women have an important part to play in the workplace. In short, women are now more ambitious than ever and want to play an equal role to men, both at home and at work.

Sadly, for many women the reality of returning to a job that is rightfully theirs is not as rosy. Jennifer Liston-smith, director of Managing Maternity Ltd, says that what often happens is the job women return to is not as they expected on return:

“Many women report that they struggle with feeling excluded from key projects in the workplace while pregnant and a need to ‘revalidate’ themselves as a valued employee on return (Millward, 2006). So, not only may they have actually been sidelined but many also feel less confident in themselves, and feel that their employer is almost doing them a favour by letting them come back, perhaps on more flexible terms.”

Falling down the career ladder

Self-doubt is not the only obstacle, with many experiencing a very real tumble down the career ladder. High-powered women once respected and admired find they have to start again regaining influence with ‘the juicier clients’.

A recent BBC drama, Sex, the City and Me highlighted just this situation. The drama told the story of a high-flying city trader who is sidelined by her boss when she returns from maternity leave and goes on to sue the bank. According to the BBC, the drama was inspired by interviews with women who have fought major cases in the City of London.

And according to Liston-Smith, the problems are more pronounced in sectors where the culture tends to be ‘macho’ with few women making it to senior levels.

So should women just ‘put up and shut up’ and be grateful for any job at all? The answer many would say is a resounding ‘no’. Disgruntled returners need, however, to go through the hurdles before winding up in court.

Setting the ground rules

Liston-Smith suggests working with colleagues in the first instance to try and resolve differences.

“Work out with your manager what the top three priorities are and be clear about what resources and opportunities you need to meet those. Otherwise, you can reinforce your doubts and others’ concerns by simply drifting along for the first few weeks back.”

Of course for many the answer is to keep the wheels in motion even when on maternity leave. In line with this the government has introduced keeping in touch (KIT) days for mums with babies born since 1 April, 2007.

These regulations provide for the employer and employee who is on maternity leave to make reasonable contact from time to time during a maternity leave period without bringing that period to an end. The KIT days are essentially when employees undertake work, training or any other work-related activity whilst on maternity or adoption leave for the purpose of keeping in touch.

The jury is out on whether these days in practice fulfil the purpose. Indeed, attendees at HR Zone’s maternity briefing this year were rather sceptical. Many expressed concern that the KIT days would merely wind up as a day for sharing office gossip and cooing over baby photos whilst others were adamant that paid for KIT days would be put to good use via briefings and training. And whilst these days appear in theory a great idea, there is no disputing the fact that it is very difficult to get an absent employee up to speed over a period of short and scattered re-orientation days.

KIT days aside, employee well-being provider ICAS says that litigation is simply a symptom of a lack of dialogue and preparation.

They advise employers to ensure women have things like performance appraisals organised, that networking contacts are strengthened before going on maternity leave, and that contact is maintained whilst on leave. All very sound advice but what happens when women hit a brick wall and the only course of action appears to be of the legal kind?

The legal case

Sarah King, partner at PJH Law, says that the first thing to ascertain is what rights are in place and, she says, the rights of workers vary depending on when they choose to return to the workplace:

“The legal position with regards to return to work after maternity leave differs depending on when the employee returns to work. If the employee returns to work after a period of her ordinary maternity leave period (six months) or any time within that period she is entitled to return to the job she was employed before her absence.

“If the employee returns to work after a period of additional maternity leave (more than six months maternity leave) then she is entitled to return to the job she was employed in before her absence or if not reasonably practicable for the employer to permit her to return to that job, to another which is both suitable and appropriate for her to do in the circumstances.”

The employee’s rights, says King, are therefore slightly less on return after additional maternity leave.

Adding to this confusion, admits King, is that employees now have the right to nine months’ paid maternity leave but the periods of ordinary and additional maternity leave remain unchanged at six months each. This means that an employee using her maximum paid maternity leave actually looses some of the rights she had whilst on ordinary maternity leave and on return from the same, without even realising this.

“All employees on maternity are high risk in terms of potential sex discrimination claims when employers get it wrong and employers should exercise caution when deciding that an employee cannot return to her old role,” she advises.

“Redundancies during maternity leave are also high risk in terms of potential unfair dismissal and sex discrimination claims. Employees have a statutory right to be offered a suitable available vacancy if they cannot return from maternity leave as a result of a redundancy situation. This statutory right is designed to stamp out the mischief of employers who reallocate work and then realise their employees can cope more long term without paying the extra salary of the employee returning from maternity leave.”

Unfortunately we still see cases, says King, where employees return to work to find that parts of their job have disappeared or have changed in their absence. They are overlooked for promotion and treated differently on return.

“All these matters point towards a sex discrimination claim. It is of course to be remembered that claims before the employment tribunal for sex discrimination are uncapped and as such employers need to consider the options carefully.”

Opportunities for promotion

It’s not just ensuring the job the employee is returning to is safeguarded, but communicating to employees that are on leave the opportunities for promotion.

The Employment Appeal Tribunal (EAT) decision in Visa International v. Paul back in 2003 illustrates this. In this case an employer’s oversight in communicating a job opportunity from a restructure gave the employee a successful claim.

In a recent EAT decision, May 2007, in Blundell v St Andrews Catholic Primary School the court stated that an employer has to consider three things when deciding upon the ‘same job’. These are: the ‘nature’ of the job, as provided by the contract of employment; the ‘capacity’ in which the employee is employed, and the ‘place’ at which the employee works.

Mr Justice Langstaff summarised: “The Regulations aim, as we see it, to provide that a returnee comes back to a work situation as near as possible to that she left. Continuity, avoiding dislocation, is the aim.”

Of course good employers ensure that any returner not only goes back to the same or similar job that they left but is also given the support and assistance needed to re-orientate themselves and adjust to the demands of working motherhood. For those that are left in the hands of the unscrupulous, the law will protect them, but in the case of the city hot shot in the BBC drama the outcome, whilst often financially lucrative, is not often what is desired.

In this drama the women is told that whilst she wins the case and a lot of money to boot, she will never return to the city to work again as no employer will touch her.

Sadly, this is often the reality – a vicious trap where the options are far from appealing – and the best thing to do of course is prevent things escalating beyond the point of return, which can be easier said than done.