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Getting maternity leave right with your key employees

By Stephen Cowburn

Over the last 12 months l have worked with client MDs on 6 cases of maternity leave and on two of these cases, because they have become contentious, I have reflected on the causes of these disputes.

Looking at this dispassionately one might say that this reflects a normal distribution – most situations of maternity leave will be managed perfectly well by both employer and employee. However, occasionally, there will be situations where the maternity  will cause a rethink in the nature of the employment relationship leading to a dispute.  In some cases the maternity accelerates the amicable ending of the employment relationship.

I offer these thoughts to better manage the maternity leave process to do the best you can to avoid disputes.

  1. As the MD who knows the employee’s situation, you are probably best placed to predict any risks that may emerge. Whether you want to admit to the risks is another matter. If there is any likelihood of a breakdown in the employment relationship, ensure that the handling of the maternity leave – verbally and in writing – is done meticulously particularly after it is known that the employee is pregnant. In particular this means not denying the employee any opportunities because she is pregnant and carrying out sensible risk assessments to establish awareness of capability during the months of maternity working.
  1. Make sure that as MD you understand the rights of a pregnant employee particularly when it comes to access to work opportunities, discussions about tasks that need doing, or dealing with office ‘banter’. It may be worth ensuring that any perceived changes are agreed in writing. Equally be conscious of what is written in emails, the contents of which are disclosable to a Tribunal or Court in the event of a dispute.
  1. As an MD you may have had a tentative discussion with the employee about her return to work. The chances are that the employee will want to return to work on a different basis to when she went on maternity leave. Prior to going on maternity leave my recommendation is to work through the plan, including having an up-front discussion about childcare and working hours and formalise this in a maternity leave confirmation letter. If the employee wants to change any aspect they need to give the appropriate notice in writing. The employee has a right to ask to work flexibly. The employer has a duty to consider the request but can reject the application on the basis of a very sound business reason.
  1. Ensure that any changes to the employment contract are written down, clearly and unambiguously, in a variation of contract letter. It may be prudent to have a trial period and to review how things are going from both the employer and employee perspective after 3 months or so. Where the changes are significant you may want to review matters after a much shorter period of time. Make sure you diarise these regular meetings to ensure they are carried out.
  1. Maintain contact throughout the maternity leave and use some or all of the 10 Keeping in Touch days to maintain and build the relationship. These days are an opportunity to inform the employee on developments within the business, the impact of these and engage at a meaningful level with the absent employee. I would suggest that the employer pays the employee to attend these days (or part thereof) to position them as normal work days rather than just a chat.
  1. If you are going to employ someone on a temporary or fixed term contract to cover the maternity leave make sure the employee on maternity leave is aware of what is happening, what the purpose of the cover is, what the person will be doing and that the position will end when the maternity leave finishes. Arrange for a suitable handover period so the returning employee can be fully engaged on her return.

Most of your key employees are more likely to act in the opposite way to what may be inferred here. They may be more worried about how the business is going to survive without them and suggest that they should be on call to answer queries. This needs to be managed as well. It gives an opportunity for others to step up and develop, though this may raise insecurities with the imminent maternity leaver. The key is to talk through the issues with the employee to cover the bases.

For a confidential discussion on maternity or any other employment law/HR issues please contact Stephen at Stephen.cowburn@hcbusinessadvisors.co.uk or phone him on 07974 425361

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