Returning to work after maternity leave is never easy and the NHS reported in 2019 that one in four women experience mental health problems in pregnancy and 24 months post-natal. Employers have a responsibility to support and guide those returning to work after maternity leave, helping them to adapt back into working life.
Under the Equality Act 2010, employees are not legally obligated to share they have suffered or are suffering from mental health issues. Alternatively, the employee will have protections if employers are aware following the Equality Act 2010 deeming mental health problems as a disability.
How employers can support those returning to work after maternity leave
There is a need for employers to support returning mothers helping to reduce the stress and implications which could arise from returning to work after maternity leave, as the new mother may struggle to fit back into their previous role after a year off. Businesses must assume the new mother is taking the full 52 weeks maternity unless they have specified otherwise, employers can not hassle the new mother after the 39 weeks or at any time for a return-to-work date.
Returning new mothers may also be experiencing self-doubt when considering how they will manage work-life and motherhood. Maternal mental health issues, especially postnatal depression impacts one in ten new mothers, frequent check ins and meetings can help settle the returning new mother and prevent employee burn out, by slowly reintroducing responsibilities and building up workloads.
In January 2021 Robin Swann approved funding for the development specialist perinatal mental health services in all five health and social care trusts across Northern Ireland, including for new and expectant mothers. Companies can make employees aware these services which are available to new and expectant mothers, however they must not suggest they require these.
Keeping in touch days known as KIT days are a positive way of communicating with the new mother, allowing for open and honest conversions which should primarily focus on how the employee is doing. Remember, employers can not hassle new mothers for a return date. KIT days help the employee to stay connected ensuring they do not feel forgotten. This can make the return to work less daunting.
Returning to work after maternity leave entitlements
If the returning mother has been away for or less than 26 weeks, the woman is entitled to return to the same job, after 26 weeks this entitlement continues unless the business has a reasonable explanation for changing the role. Further to this, pay and conditions can not change unless enhanced them as if they had not gone on maternity leave.
If the business denies the new mother to return to the same role without a reasonable explanation, an unfair dismissal and maternity discrimination case can be brought forward. Unfair dismissal cases can also be taken if an employee on maternity is made redundant, as those on maternity have greater protections in redundancy processes. Businesses should be extremely careful when going through the redundancy process, especially if the employee is off on maternity leave.
When on maternity leave the employee still collates their holiday entitlement, which can be used to extend the woman’s maternity alternatively, the new mother may opt to reduce their weeks by using these holidays weekly. This means the employee could be returning on a 3 / 4-day week for a period of time.
New mothers returning to work after maternity leave are entitled to request flexible working; however, they do not have an automatic right to reduced or changed working hours similar to all other employees.
Mellor V The MFG Academies Trust (2022)
Business can go wrong when new mothers are returning to work after maternity. In the case of Mellor v The MFG Academies Trust, the employer failed to provide private facilities for a returning new mother who was continuing to breastfeed following her maternity leave.
Ms T Mellor won her claim of harassment related to sex which related to issues of unsuitable facilities for expressing herself, Ms Mellor had been on maternity leave and before returning had communicated the requirement of suitable facilities for expressing as she intended to continue breastfeeding. Ms Mellor returned to work on 30th September 2020 and the claimant had to express milk in the toilet or in her car daily until the 16th of December 2020 (her last day in work).
The claimant was not successful in all her claims including direct and indirect sex discrimination, this is due to putting discrimination towards breastfeeding which is not a protected characteristic. Ms. Mellor also brought forward a claim of being treated less favourably in comparison to the male comparator who was made clear of available facilities to inject insulin. The claimant was not provided the same treatment and facilities were not made clear or available for her to express milk, however this was unsuccessful due to it being administrative incompetence rather than because of the claimant’s sex.
The claim which was successful was harassment related to sex, the judgement included the conduct did have the effect of creating a degrading or humiliating environment with Ms Mellor having to express in the bathroom or car, which was deemed unacceptable due to the risk of exposure of intimate body parts in public. This was judged to be inherently related to Ms Mellor being female.
The conditions where Ms Mellor had to express from 30th September to 16th December 2020 would have repeatedly embarrassed and made Ms Mellor to feel undervalued, potentially leading to emotional stress impacting her mental health.
Employers can learn from this tribunal case, specifically to never assume employees are aware of particular facilities including for taking medicine such as insulin injections or similar to this case to accommodate breastfeeding. Employers may find it beneficial to speak with the new mother to check for any requirements relating to their return putting an action plan in place.
Are your maternity policies and key information fully up to date in your employee handbooks? Including notice periods required if the new mother decides to return i.e. the date or that they will not be returning.
Do you provide enhanced maternity pay and require the employee to return to work for at least 3 months or pay back the enhanced money? You may want to adapt these policies, as said above one in ten mothers experience post-natal depression and are unable to return to work following the 52 weeks of maternity.
Contact us today for more information on maternity policies for your handbooks.
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