Can You Lose Your Job After Taking A Maternity Leave?

The Family and Medical Leave Act (FMLA) mandates employers to reinstate employees returning from FMLA leave to their former or another position with equivalent employment benefits, pay, and other terms. However, a recent federal appellate court decision highlights the potential for wrongful termination or retaliation if an employee is fired soon after returning from maternity leave. Employers should not discriminate against workers who require leave, including those who take a full 12 weeks off following the birth of their child.

If an employee returns from maternity leave and is fired soon after, they may have a claim for wrongful termination or retaliation. If the employee used the FMLA for their maternity leave, it is illegal for the employer to terminate them because they are pregnant. However, in some situations, it is perfectly legal to replace the employee while they are on FMLA.

Working women often face difficulties balancing family and career, particularly if they choose to have children. The federal Pregnancy Discrimination Act states that an employer cannot permanently demote a pregnant employee even if the pregnancy does affect their job duties. However, employers can demote, discipline, or even terminate an employee for taking unpaid leave.

In California, the law prohibits discrimination against workers who require leave, including those who take a full 12 weeks off following the birth of their child. Pregnant employees can continue working as long as they can fulfill their job duties.

Finally, employees can only be fired after maternity leave for a fair reason, such as redundancy, which would require a fair process that includes a fair dismissal.

Can you be made redundant after maternity leave?

Employers can make employees redundant when they return to work after maternity leave, provided there is a genuine redundancy situation that is not caused by the employee’s maternity leave. If the employee is made redundant during maternity leave, they must be given the first option on any suitable alternative work and must be considered before any other redundant employee. If the employee discovers their job was made redundant during maternity leave, they should remind the employer of their legal right to be offered any suitable alternative vacancy. If the employee can prove that there is no genuine redundancy situation and the employee was made redundant due to maternity leave, they should appeal and consider bringing a grievance.

What happens if you leave after maternity leave?

In the event of one’s decision to terminate employment during or subsequent to maternity leave, the customary resignation process, inclusive of the requisite notice period, must be adhered to. It would be prudent to consider any handover arrangements and utilise your Keeping in Touch (KIT) days for this purpose. In the event that an employer offers enhanced maternity pay, the individual may be required to repay a portion or the entirety of the enhanced amount in the event that they fail to resume their position or depart shortly following the conclusion of their maternity leave.

What happens if you don’t go back to work after maternity leave?

It is not within an employer’s prerogative to compel an employee to resume work following a period of maternity leave. However, an employer may legally require the employee to make partial or full payment of the maternity pay owed.

Can you go on the sick straight after maternity leave?

If you are going to return to work after 52 weeks of maternity leave, you do not need to give any notice of return. You can go back to work on the day you are due back and are entitled to your normal pay. You can take annual leave or sick leave if needed. If you want to return before the end of your maternity leave, you must give your employer at least 8 weeks’ notice of the date you will be returning. If you do not give this notice and just turn up at work before the end of your maternity leave, your employer can send you away for up to 8 weeks or until the end of your leave, whichever is earlier.

If your employer did not write back to you within 28 days of the date you gave notice to take your maternity leave stating the date that your 52 week maternity leave will end, they cannot insist on you giving 8 weeks’ notice to return to work early. You should still give as much notice as possible to help you and your employer plan your return to work.

If you decide not to return to work, you can get SMP and MA for 39 weeks even if you do not plan to go back to work or if your employment ends during the SMP/MA period, such as if you are made redundancy. You do not have to pay SMP or MA back if you decide not to return to work. If your employer has given you extra contractual maternity pay, you only have to repay it if that was agreed in advance or specifically stated in your maternity policy.

If you do not want to return to work and need to repay your occupational maternity pay, you can ask to repay any company maternity pay in reasonable instalments, taking account of your household income and outgoings. You may find it helpful to speak to a debt adviser who can help you negotiate with your employer and agree a reasonable repayment plan.

If you are unable to return to work after your maternity leave, you can take sick leave as usual. However, once you are well enough to return to work, you cannot stay off work after your maternity leave has ended, as you will lose your right to return to work if you do not go back at the end of your 52 weeks’ leave.

Ask your employer if you can take annual leave immediately after your maternity leave, which is entitled to at least 28 days paid annual leave. Your normal holiday entitlement continues to accrue during maternity leave, so you may have some holiday owing to you. Annual leave should be agreed with your employer in the normal way and you should not be treated less favorably because you have been away on annual leave.

If you returned to work early and have not used up all your maternity leave/pay but now wish to take some more leave, you could give notice to take shared parental leave. Shared parental leave can be taken by either parent but must be taken within the first year after your baby’s birth. You may be eligible for Universal Credit if you take a period of unpaid leave, depending on your household income, housing costs, and number of dependants.

You are also entitled to urgent unpaid leave to care for a dependant in an emergency. The leave can be used if a dependant falls ill, gives birth, is injured, or there is a sudden problem with arrangements for the dependant (e. g., if your childminder falls ill). You are only entitled to take the time off necessary to deal with the emergency and to make arrangements for the care of the dependant.

If you have been on maternity leave and sick leave for a long time, you may have accrued a large amount of leave. You can take annual leave during sick leave, so you could ask to receive some paid holiday during your sick leave. You are entitled to carry forward 20 days annual leave if you cannot take it because of sick leave.

You cannot take annual leave during maternity leave, but you can end your maternity leave early, giving at least 8 weeks’ notice to end your maternity leave early and agreeing your annual leave with your employer in the usual way. It is a good idea to talk to your employer early in your pregnancy to agree when you will be taking your annual leave so that you can both plan in advance.

The government advises that employers should allow up to 28 days of statutory leave for employees who cannot take all their annual leave in the leave year due to absence on maternity leave, shared parental leave, or other types of parental leave. If your employer offers more than the statutory minimum of 28 days annual leave, it is up to your employer how much of your contractual annual leave (over and above the statutory 28 days) you can carry forward.

If you are not well enough to return to work at the end of maternity leave, you are entitled to receive sick pay if you are not well enough to return to work. You should follow your employer’s normal sickness reporting procedures at the end of maternity leave. Statutory Sick Pay (SSP) is paid after four consecutive days of sickness absence to employees who have earnings of at least £123 per week (April 2024 – April 2025) in the previous 8 weeks.

You are not entitled to SSP for any period of sickness that began during the 39 week SMP period (or 18 weeks if you were not entitled to SMP). If your period of sickness begins after the end of the 39 or 18 week SMP period, you may qualify for SSP if your earnings were high enough. If you claim SSP after the end of your 39 week Statutory Maternity Pay period, SMP counts as earnings. Maternity Allowance does not count as earnings.

If you do not qualify for SSP, your employer should give you form SSP1. If you do not qualify for SSP, you should get advice from your local Jobcentre Plus or Citizens’ Advice Bureau.

Once your maternity leave has ended, you are treated as if you are “back at work”, even if you are not well enough to actually go into work. You are entitled to take sick leave and should be treated in the same way as any other employee who is off sick.

You are protected against pregnancy/maternity discrimination throughout pregnancy until the end of your maternity leave period (up to 52 weeks or until you return to work, if earlier). For pregnancy/maternity discrimination, you need to show that you were treated unfavorably because of your pregnancy, pregnancy-related illness, or absence on maternity leave. You can also claim pregnancy/maternity discrimination where a decision was taken during your protected period even where it was implemented after the end of your maternity leave.

What is the protected period after pregnancy?

Pregnancy-related illness protection is applicable to individuals who are treated unfavorably due to pregnancy, a pregnancy-related illness during pregnancy or during maternity leave, or because they intend to take or took maternity leave. This protection begins from the date of pregnancy and continues until after returning from maternity leave. Employers must know that the individual is pregnant for discrimination to occur.

The test for direct discrimination because of pregnancy and maternity is whether the treatment is unfavorable, rather than less favorable, and the woman does not need to compare her treatment with that of other workers.

Can you resign while on leave?

The Act does not prohibit employees from giving employer notice of termination while they are on leave, including sick leave. However, employers cannot insist on annual leave during notice periods and employees cannot take annual leave during notice periods. Under certain circumstances, employers may terminate a contract without notice, but this is only possible if the employer creates an intolerable working condition and the employee decides to resign and leave immediately. Giving an employer 24 hours notice is generally unlawful, and if the employee acts in this manner, the employer may sue the employee for breach of contract.

What is classed as maternity discrimination?

Pregnancy and maternity discrimination refers to the unfair treatment of individuals due to pregnancy or being pregnant. It can also occur within six months of giving birth or breastfeeding. To take legal action against such discrimination, individuals must check if the Equality Act 2010 covers the situation. This law prevents businesses and service providers from discriminating against individuals, including those who are pregnant or were pregnant.

Can you end maternity leave early?

In order to return to work at an earlier date, it is necessary to provide your employer with at least eight weeks’ notice. Should you fail to do so, your employer may insist on waiting until the eight weeks have elapsed. In the event that an employee elects to terminate their employment, they are obliged to provide their employer with the requisite notice period. Should one wish to modify the return date, it is also necessary to provide the requisite notice to the employer.

Can you resign while on maternity leave?

Resigning during maternity leave is normal and requires following the contract or employer’s agreement. A model letter can be used to give notice. If you resign during maternity leave, you don’t need to work during the notice period and can remain on maternity leave. If you resign after maternity leave, you should work your notice unless you agree to annual leave or need sick leave. Maternity pay lasts 39 weeks, while maternity leave lasts 52 weeks, with the last 13 weeks usually unpaid.

You can remain on maternity leave for up to 52 weeks and resign at the end of the leave period if you can’t return to work. Contractual benefits, apart from wages, continue to accrue during maternity leave and will continue until the end of the notice period.

Why is returning to work after maternity leave so hard?

Post-maternity leave, the transition to work can be challenging, as juggling office pressures with home life can be overwhelming. A 2020 study found that over a third of working mothers found returning to work harder than expected. The cost-of-living crisis also contributes to this, with 1 in 10 mothers returning to work earlier due to financial difficulties. This highlights the need for support and understanding during this challenging time.

Can I resign with immediate effect due to stress?

Unknowingly resigning with immediate effect can result in a loss of notice payments and breach of contract, potentially leading to a claim against the employee. It is crucial to ensure that you are providing the appropriate notice under your employment contract. Giving the employer the “heads up” about your intention to resign on a future date is generally not a good idea, as it may lead to the employee leaving earlier than intended and may not be treated the same way as before.

It is essential to be cautious during the resignation process and to ensure a smooth transition into your new job. It is essential to communicate your intentions clearly and avoid giving the employer the “heads up” that you are leaving. A careful dialogue during the resignation process is essential to avoid any potential legal issues.