Pregnancy, adoption and maternity: Return to work

This guide is for employers.                                  

This guide sets out your legal obligations to new parents returning to work after they have taken leave due to pregnancy, adoption or maternity. It covers your duties in relation to an employee’s rights upon return to work, including:

• sickness absence
• health and safety
• breastfeeding
• flexible working requests
• leave, and
• grievance and disciplinary processes.

Rights on return to work after leave

• You must allow an employee to return to the same job on the same terms and conditions unless it is not reasonably practicable to do so.

• If it is not reasonably practicable for an employee to return to the same job, you should offer them a suitable alternative job on terms and conditions that are not less favourable.

Sickness at the end of leave

You must allow employees to take paid sick leave in the same way as other employees after the end of leave.

Health and safety after return to work

If an employee returns to work pregnant, within six months of childbirth or while breastfeeding, you must carry out an individual risk assessment and take reasonable action to remove or reduce any risk that you identify.

Breastfeeding

You must provide a suitable place for a breastfeeding employee to rest.

Flexible working requests

You must consider a request for flexible work within two months of receiving it. Requests can only be refused for certain business reasons. These are set out in law.

Statutory parental bereavement leave and pay

You must allow eligible employees to take up to two weeks' leave in the event of the death of a child in their care under the age of 18. For employees with 26 weeks’ service or more, this must be paid to at least the applicable rate of statutory child bereavement leave.

Time off for dependants 

You must allow eligible employees to take unpaid time off for dependants when there is an emergency.

Parental leave

• You must not subject dismiss an employee or subject them to a detriment because they took or sought to take parental leave.
• You must also not discriminate against an employee by treating them less favourably because they took parental leave.

An employee is legally entitled to return to exactly the same job as they were doing before the start of their leave, on the same terms and conditions they had before if they return to work during (or at the end of) any of the following:

• Ordinary maternity leave (the first 26 weeks of leave)
• Ordinary adoption leave (the first 26 weeks of leave)
• Paternity leave or shared parental leave where they have taken total leave of 26 weeks or less in aggregate (including any other periods of statutory leave), or
• Parental leave of four weeks or less.

They must be given any pay rises, or improvements in other terms and conditions, that would have applied had they not been away.

If you cannot offer the employee the same job on their return because the work of the business has changed, you should explain how and why the work has changed. For example, this might be because of business developments. You should discuss what work the employee will do in future.

An employee is also usually entitled to return to the same job on the same terms and conditions, as if they had not been absent, if they return to work during or at the end of:

• Additional maternity leave (the last 26 weeks of leave)
• Additional adoption leave (the last 26 weeks of leave), or
• Shared parental leave where they have taken total leave of more than 26 weeks (including any other periods of statutory leave)

However, if it is not reasonably practicable for the employee to return to their original job, for example due to business reorganisation, they have a legal right to be offered a suitable alternative job. It is for you to show that it is not reasonably practicable for them to return to the same job.

The new job must be both suitable and appropriate for the employee. For example, it should not be at a different location that is difficult for them to travel to. It must be offered on terms and conditions of employment that are no less favourable than the employee’s previous job.

A less favourable role could be:

• where the work is less senior, less interesting or there is less responsibility
• where changes have been made that make the role less attractive
• where earnings from commission or performance-related pay may be reduced, or
• where the new post is more likely to be made redundant.

If an employee is given a different job on their return to work and this is partly or wholly due to their leave, they may have a claim for maternity discrimination and / or for constructive unfair dismissal. 

If the employee’s responsibilities were given to other employees while on leave, they should get these back when they return. You must not move an employee returning from maternity, paternity, adoption or shared parental leave to another job because you prefer the person you have employed to cover their role during leave. This would be an unlawful detriment and / or maternity discrimination.

If their job on return is less favourable in terms of responsibilities, and the reason is their absence on maternity, paternity, adoption or shared parental leave, this would be an unlawful detriment and / or maternity discrimination. 

You cannot postpone an employee’s return to work, unless:

• The postponement is agreed. You should ensure that the terms of the postponement are confirmed in writing including what the employee will be paid during the addition leave period;
• The employee wants to return earlier than their return date and has not given you the full eight weeks’ notice, in which case you can delay their return but only up to the end of the eight weeks.

You must not disadvantage an employee for:

• taking longer maternity, paternity, adoption or shared parental leave than you would like
• changing their mind about when they want to return, or
• not providing enough information about when they will return at a time when they are not required to give this information.

An employee can change their mind about when to return from maternity, paternity, adoption or shared parental leave, provided they give you eight weeks’ notice.

You should not assume that an employee returning to work will want to change their hours or working pattern. You should not, for example, suggest that if they want to reduce their hours they will have to move to another job, or disadvantage them in any other way.

You must not an employee unfavourably upon return because you believe they are pregnant. Nor must you prevent them from returning to work for this reason. This is pregnancy discrimination. A pregnant employee is entitled to a further period of maternity or shared parental leave and may qualify for statutory maternity or shared parental pay, or any contractual maternity pay, if the normal qualifying conditions are met.

An employee is legally entitled to take sick leave in the normal way at the end of any period of maternity, paternity, adoption or shared parental leave. The employee is ‘back at work’ even if they are off sick and have not physically returned to work because of sickness. 

An employee who is off sick because of postnatal depression does not have the same protection as if they were off sick because of their pregnancy. This is because they are no longer in the protected period.

You can take disciplinary action against an employee who is absent on sick leave after the end of their maternity, paternity, adoption or shared parental leave period, provided a fair procedure is adopted. Any pregnancy-related sickness or absence on maternity leave should not be considered.

If the employee has returned to work within the 39-week statutory maternity pay or maternity allowance period and then takes sick leave, they must be paid statutory maternity pay for any week of absence. An employee could also claim maternity allowance from the Jobcentre Plus. You must top up statutory maternity pay or maternity allowance to match any right they have to contractual sick pay. You can claim reimbursement of any statutory maternity pay from HM Revenue and Customs (HMRC) in the normal way. The 39-week statutory maternity pay period runs from the date that the employee started their maternity leave and pay.

Entitlement to statutory sick pay after returning to work

Entitlement to statutory sick pay should be calculated in the normal way. Any payments of statutory maternity pay, statutory adoption pay, statutory paternity pay or shared parental pay count as earnings for statutory sick pay purposes. An employee might not satisfy the average earnings conditions for statutory sick pay if they have been on a period of unpaid leave. 

For more help with paying statutory sick pay, contact HMRC on 0300 200 3200. New employers should ring 0300 200 3211. You can find more information in the HMRC statutory pay guidance.

Entitlement to contractual sick pay

If you give a contractual right to full sick pay, an employee will be entitled to this in the normal way. This is the case if they return to work but are off sick after a period of maternity, paternity, adoption or shared parental leave.

Employees are likely to need support when they return from maternity, paternity, adoption or shared parental leave because of changes in the workplace. These might include new staff, different procedures and other developments. It is advisable to ensure that:

• a returner is greeted and welcomed on their return
• they are able to return to their old desk or workstation, if possible
• they are updated on developments and introduced to any new staff
• their work is discussed, so they know what they have to do, and
• any targets are appropriate, for example if they have fewer clients because of their absence on maternity, paternity, adoption or shared parental leave

If your employee needs reasonable adjustments because of a disability or impairment, it is good practice to review these upon an employee's return to work.

For example, some disabled parents or parents of disabled children might have additional journey time involved in taking their child to childcare. This might mean putting in place a simple adjustment to start times.

Access to Work offers support to help employees stay in work if they have a physical or mental health condition or disability. If your employee is in receipt of Access to Work support, you should ask them to advise Access to Work of any significant changes to their support requirements.

For more information on reasonable adjustments, read the Equality and Human Rights Commission's guidance: Employing people: workplace adjustments.

If an employee returns to work pregnant, within six months of giving birth, or while breastfeeding, you must consider any risks identified by the workplace risk assessment and individual risk assessments. In practice this means:

• carrying out a general risk assessment on all your employee’s workplaces and regularly reviewing it in case of significant changes at work
• carrying out an individual risk assessment for the pregnant employee and regularly reviewing it over the course of the pregnancy
• carrying out a display screen equipment (DSE) assessment for employees working at a workstation, and
• taking action to deal with health and safety issues relating to pregnancy or breastfeeding that may arise from the assessment(s), or specific issues identified by the pregnant or breastfeeding employee.

It is not possible to control or remove a risk you identified, you must take one of the following actions:

1. adjust the employees’ working conditions or hours of work. to avoid the risk, if possible, or
2. if there are no reasonable changes you can make to avoid the risk, offer the employee suitable alternative work on terms and conditions that are not substantially less favourable to those of the original job, or
3. if there is no suitable alternative work, suspend the employee on full pay for as long as is necessary to avoid the risk. 

If an employee does not provide written confirmation of pregnancy within a reasonable time, you do not have to continue any changes to working conditions or any suspension or full pay.

You must consider any advice provided by the employee's doctor and / or midwife.

The employee must notify you in writing that they have given birth in the last six months or are breastfeeding. 

For more information on health and safety risks, read the Health and Safety Executive (HSE) guidance on protecting pregnant workers and new mothers.

You must conduct an individual risk assessment for each breastfeeding employee and review it regularly. It is good practice to ask an employee about breastfeeding before their return to work. That way, you can take the appropriate steps to make the job safe in advance. If the work could involve risks to an employee who is breastfeeding, the workplace risk assessment must include an assessment of risks to new or expectant mothers arising from:

• processes
• working conditions, and
• physical, biological or chemical agents.

If you do not assess the risks and take action, you could face a claim for sex discrimination. There could also be serious consequences for the parent and / or baby. If you are in any doubt, contact the HSE.

Reasonable action to protect the health and safety of employees who are breastfeeding could include ensuring that they have:

• adequate rest breaks
• shorter shifts to ensure proper nutrition
• access to water, and
• access to a clean fridge and washing facilities

It is good practice to provide a private room in which an employee can breastfeed or express milk, and it may be unlawful not to do so if there is a suitable space available. Toilets are not hygienic places for an employee to breastfeed or express milk. In the case of Mellor vs The MFG Academy, a tribunal found that forcing an employee to express milk either in the car or toilets amounted to harassment.

You should ensure that the environment is not too hot or too cold. You should also assess levels of fatigue, stress and changes in posture.

You have a legal obligation to provide somewhere for a breastfeeding employee to rest. This obligation continues for as long as the employee wishes to breastfeed.

Less favourable treatment of a woman because she is breastfeeding may also be sex discrimination. A refusal to take reasonable steps to accommodate breastfeeding may be indirect sex discrimination if it cannot be justified.

For further information on supporting employees who are breastfeeding, read the HSE guidance on rest and breastfeeding at work and Acas guidance on accommodating breastfeeding employees in the workplace.

It is good practice to consider how to update the employee on changes that have happened during their leave, and to ask about any training needs. You could also consider offering a phased return to work for the first few months.

All employees have a legal right from the first day of their employment to make a request to change the hours, days or place of work of their existing job. For further information, read the Acas guidance on flexible working, including guidance on how to respond to flexible working requests.

If you refuse the request for flexible working without a good business reason, this might be indirect sex discrimination. An employee may take a claim to an employment tribunal which will look at your reasons for refusing the request. The tribunal will decide if you have good business reasons to refuse. A refusal to allow a woman’s request for flexible work may amount to indirect sex discrimination if she needs to change her working hours for childcare or caring responsibilities. A refusal of a man’s request for flexible work may also be indirect sex discrimination or direct sex discrimination, if a woman in similar circumstances has been offered flexible work.

A tribunal may order you to reconsider the employee’s application or make an award of compensation.

Parental leave consists of 18 weeks’ unpaid leave, per parent, per child, including in the case of adoption or surrogacy. Parental leave is different from paternity leave as it can be taken by both parents up to the child's 18th birthday. Up to 4 weeks’ parental leave can be taken in respect of each child, each year, unless you agree otherwise.

Unless you agree otherwise, parental leave must be taken in blocks of a week, except where the child is disabled, in which case it can be taken in single days.  

An employee who is named on the child's birth or adoption certificate or has or expects to have responsibility for a child and who meets the qualifying conditions is entitled to take parental leave to care for that child. 

To be eligible to take parental leave, an employee must have been employed by you for at least one year. For detailed information on eligibility, read the UK government's guidance on parental leave.

You have a legal right to ask the employee for proof of parental responsibility, the child’s date of birth, or the date the child was placed for adoption. An employee must give you at least 21 days' notice to take parental leave. Their notice must state when the leave will start and finish.

An employee is not legally obliged to give notice of return to work from parental leave. If an employee wishes to take parental leave immediately after maternity, paternity or adoption leave, they must follow the standard notice requirements.

You are legally entitled to postpone parental leave for up to six months, if you can show that the business would be unduly disrupted by the absence. You must give notice of postponement within seven days of the employee’s notice, stating the reason for postponement and the dates the employee can take parental leave.

You must not dismiss an employee or subject them to a detriment because they took or sought to take parental leave. You must also not discriminate against an employee because they took parental leave by treating them less favourably because they took parental leave.

Employees who meet the qualifying conditions are legally entitled to two weeks’ leave in the event of the death of a child in their care who is under the age of 18, including in relation to adoption or surrogacy. This leave must be taken within 56 weeks of the child’s death. If the employee has 26 weeks’ service or more, this leave must be paid to at least the level of statutory parental bereavement pay. 

For detailed information on parental bereavement leave and pay, read the UK government’s guidance on this topic.

All employees are legally entitled to take a reasonable amount of time off to deal with emergencies involving dependants. Time off for dependants can be taken:

• if a dependant falls ill
• if a dependant gives birth or is injured
• if a dependant dies
• if a dependant is involved in an incident during school time, or
• other care arrangements to deal with incidents at school, or
• where the employee needs to make arrangements for the care of a dependant who is ill, (including a dependant with a mental health condition), or injured.

A dependant could include:

• a child or adopted child or grandchild
• a spouse
• a civil partner
• a partner (including same-sex partner), and
• a parent, or
• someone who depends on you for care.

There is no legal definition of a ‘reasonable’ amount of time off. The time taken must be necessary and proportionate in the particular circumstances.

For example, the employee might take time off to deal with the immediate problem and make longer term arrangements, but it might not be reasonable to take off any more time than that.

As time off for dependants is classed as time off for unforeseen circumstances, an employee is not legally obliged to give you any notice. Your employee must tell you the reason for the absence as soon as they can. They must also tell you how long they expect to be absent.

You must not unreasonably refuse emergency time off, dismiss an employee or subject them to a detriment, such as disciplinary action or refusing a promotion, because they have taken, or requested, time off for dependants.

You can make an employee redundant on their return from maternity, adoption or shared parental leave provided that:

• there is a genuine redundancy situation which is not caused by the fact they are pregnant, have taken maternity, adoption or shared parental leave 
• you ensure all employees who are pregnant, have been on maternity, adoption or shared parental leave are not disadvantaged, and
• the selection process, including selection criteria and assessment, does not disadvantage an employee because of pregnancy or maternity, adoption or shared parental leave.

Employees who are pregnant and are taking maternity, adoption or shared parental leave have a right to be offered suitable alternative employment in a redundancy situation in priority to other employees. This protection continues upon return from maternity, adoption and shared paternity leave (where at least six weeks SPL has been taken) and lasts for 18 months from the date of birth or adoption.  

Employees on fixed-term contracts have similar maternity and employment protection rights to permanent employees. If you do not renew a fixed-term contract because of maternity leave, adoption or shared parental leave, this would be (automatic) unfair dismissal and/or maternity discrimination. Your employee should be offered suitable alternative work, as permanent employees would be.

If an employee says that they intend to resign and claim for constructive dismissal, it is good practice to meet with them to discuss why they believe you have behaved in a way that entitles them to do this. There may have been a misunderstanding. For example, they may think that their job has been taken by their maternity cover when this is not the case.

If the employee does resign because they believe that you have discriminated against them or behaved in a way that is a fundamental breach of their contract, they may claim for constructive dismissal. To prove that they have been constructively dismissed, an employee must show that:

• you have committed a significant breach of their employment contract. This can include behaving in a way which causes a breakdown in trust and confidence
• they resigned because of your behaviour, and
• they did not wait too long before resigning. If they did, you can argue that they accepted the treatment by continuing to work as normal.

You cannot dismiss an employee if the reason for dismissal is their pregnancy, pregnancy-related, or relates to childbirth, maternity, adoption or shared parental leave.  

You can dismiss an employee if there is a fair reason for the dismissal and you follow a fair procedure. For example, if you discover that an employee has been dishonest, you can take disciplinary action and dismiss them, provided you follow a fair procedure as set out in the Acas Code of Practice on disciplinary and grievance procedures. You must write to the employee, setting out the reason for their dismissal.