It’s no secret that life changes dramatically after having a baby and the way you were able to work prior to maternity leave may no longer be feasible. For many women, giving up work altogether is not a financial option; they need to continue to earn to pay the mortgage and support their household. In such circumstances, flexible working after maternity leave may be the only solution.

The realities of maternity leave

Regardless of how long they have worked for their employer, all women are entitled to take up to 12 months maternity leave. Maternity leave is a legal entitlement which is intended to assist a mother in recovering from pregnancy and childbirth and allow her to care for her baby in its early months. Importantly, a mother has a legal right to return to her old job at the end of her maternity leave.

Unlike maternity leave, there are eligibility requirements in order to be able to claim statutory maternity pay. Maternity pay is only paid for 39 weeks, with the first six weeks at 90% of earnings, then £146.68 a week.

Many, but not all, employers offer enhanced maternity pay for a limited period. Therefore, it is no surprise that many women do not take their full 12 months maternity leave as it is not financially viable to do so, particularly as having a new baby will involve additional costs.

The logistics of returning to work after maternity leave

Parenthood is all about ‘learning on the job’ and it understandably takes most people some time to adjust to their new reality once they have had a baby. However, the earlier that you can start thinking about the logistics of returning to work, the better prepared you will be to achieve the outcome you want.

You will need to decide what sort of childcare you will use: a nursery, a childminder, a nanny, family members or a mixture of all or some of these. You will want to visit nurseries, interview child minders or nannies and talk honestly to family about what help they can give. In some areas it may be necessary to go on to waiting lists for popular nurseries.

Once you have decided what your preferred childcare is you will need to consider whether the hours match your working patterns. At this point it may be apparent that working full-time is not feasible, or it will be only if you can change the way you work. This is where flexible working comes in to play.

Flexible working after maternity leave can not only help you manage childcare arrangements but can also be financially advantageous by helping to reduce childcare costs (which are likely to be considerable). It also has a number of other proven advantages for employers and employees such as minimising travelling time and costs, reducing stress, increasing wellbeing, as well as improving productivity, staff morale and loyalty.

For the sake of completeness it should also be mentioned that flexible working can have some disadvantages as well. These should not be ignored when considering what sort of flexible working you will ask for following maternity leave.

What is flexible working?

The phrase ‘flexible working’ working is an umbrella term which covers a multitude of arrangements which might be put in place to assist an employee with their childcare or other caring responsibilities.

The right to request flexible working is a legal right which applies to all employees (as long as they have been employed for at least 26 weeks) regardless of whether or not they have children. However, it is heavily used by working parents and, although a flexible working request can be made at any point in someone’s working life, it is common for parents returning from maternity or adoption leave to use at that point.

Flexible working often means part-time working (particularly by mothers), but it might also take the form of working from home, job sharing, flexitime or term-time only working or just guaranteed shifts that fit around your childcare.

It is important to note that the legal right is only to ask your employer for flexible working and for them to consider your request; they are

not obliged to say yes and can turn down requests if they have a reasonable basis for doing so.

Should you make a flexible working request?

Following maternity leave, you normally have the right to return to your old job on the same terms as before, with your seniority preserved. You will also be entitled to benefit from any pay rises which have been implemented while you have been on maternity leave. Your employer will expect you to return to your role on the same basis as before and you will be required to do so, unless you ask for changes.

For many people, this will involve making a formal flexible working request. However, in smaller organisations, where there is a strong culture of supporting working parents, or where you have a very good working relationship with your manager, you may wish to deal with this informally first by simply having a chat to ascertain what the possibilities might be.

How to ask for flexible working after maternity leave

Given that employers may lawfully refuse a request for flexible working in certain circumstances, it can be a nervous time for parents. For women on maternity leave, it may therefore be advisable to start the process early on so that they know exactly where they stand and can make alternative arrangements if necessary or have adequate time to challenge any refusal.

If you think your employer may be reluctant about agreeing to flexible working, think about offering a trial period so you can demonstrate that it can work for both parties.

They said yes…

If your employer agrees to your request, that’s great! Remember, though that this will be a permanent change to your contract of employment – so make sure you get an amended agreement – you won’t be able to switch back to your old terms of employment at a later date without your employer’s agreement (and your old job may not be available any more).

They said no…

The law on flexible working requests allows employers to reject requests on certain specified business grounds. However, what they cannot do is reject a request on other grounds such as, “we’ve already got too many people working part-time” or “it’s our policy that all our managers have to work full-time”.

Whatever the reason, your employer must explain the reasoning motives behind their refusal. Although you have no strict legal right to appeal your employer’s decision, employers must be able to demonstrate that they have considered the request in a reasonable manner and this might involve providing an appeal procedure. Alternatively, you could use your employer’s grievance procedure, which all employers must have, to challenge any refusal to allow flexible working.

Can I sue my employer if they won’t allow flexible working after maternity leave?

There are some limited situations in which you can issue a claim against your employer in an employment tribunal. These circumstances are where your employer:

• did not handle your request in a ‘reasonable manner’
• wrongly treated your application as withdrawn
• dismissed you or treated you unfairly because of your request
• rejected your application based on incorrect facts

However, it’s important to remember that you only have 3 months from the date of your employer’s decision (or the date your employer should have responded to your request) to bring such a claim.

Sex discrimination

Regardless of whether a formal flexible working request has been made, an employer risks a sex discrimination claim if they refuse to alter the employment terms and conditions for a new mother returning to work.

Sex discrimination claims can be brought in the employment tribunal while an employee is still employed; there is no need to resign first.

Employment tribunals tend to accept that more women than men have primary responsibility for childcare. Therefore, if an employer unreasonably refuses to accommodate a mother returning to work who asks for changes to assist her with childcare arrangements it may be indirectly discriminating against her, if it has no good business reason for its refusal. For an example of a case where the employee successfully brought such a claim in the employment tribunal, please see our article on changes to flexible working arrangements & sex discrimination.

Alternatively, a failure to properly consider a flexible working request or an unreasonable rejection of a flexible working request could be a breach of the implied term of trust and confidence, entitling the employee to resign and claim constructive dismissal.