Employers fail to manage maternity leave

Laytons advises why mishandling maternity leave can lead to a claim for sex discrimination

Laytons (www.laytons.com), the national firm of solicitors, are warning employers to take greater care over the way they communicate with employees on maternity leave. Problems arise not over the taking of the leave itself but of the status of the employee whilst she is on leave. There is a tendency for some employers to regard the employee on leave as ëout of sight and out of mindí, which can lead to a number of problems.

ìThere is often a misunderstanding as to the status of the employee. An employee on maternity leave is entitled to the benefit of all the terms and conditions of her employment, which would have applied if she had not been absent, except for the payment of her wages or salary.î Says Tim Randles, Head of Employment, Laytons Solicitors, Guildford. ìIn truth, it remains in the interests of every employer to welcome highly trained staff back into the workplace when they are ready to return and (within reason) to make them feel part of the team even whilst they are away.î

A recent case held that an employerís failure to notify the employee of job vacancies arising while she was on maternity leave was a breach of the implied term of trust and confidence and also direct sex discrimination. Prior to that, there have been other cases that have held that a failure to conduct a performance appraisal during maternity leave is direct sex discrimination.

Employers really need to perform a balancing exercise deciding what information is sufficient and correct to send the employee whilst on leave, against what might be regarded a nuisance or even harassment. Randles has some advice on this.

ìEmployers should introduce a policy of holding a pre-maternity leave interview with all maternity leavers to determine what sort of level of contact the employee would like and what steps will be taken to inform the employee of the happenings in the company whilst she is way. As a minimum, we would always advise employers to notify the employee of any matters relating to her pay and benefits, office relocation, possible redundancy issues, or any other significant matter, such as a restructure, which might affect her job on her return.î Comments Randles.

Employers should plan sensibly and think about the policy they want to adopt. Whatever her rights the employee will face maternity leave with some concern about her future career. By having a policy which provides for a sensible and proportionate way of managing the employeeís absence, which will include:

Establishing an agreed level of contact
Agreeing the preferred method of contact
Ensuring that they have been appraised and salary expectations understood
Keeping them informed of any changes for better or worse, and
Making sure that career aspirations have been addressed or at least understood and any vacancies communicated

The employer will ensure that the employee feels welcomed back when the leave is over, confident that she has been thought of as a participating member of the team whilst she has been away. This at the end of the day can only be to the advantage of all concerned.