Last night was the conclusion of the BBC’s gripping psychological thriller The Replacement. In episode one we meet successful architect Ellen who learns she is pregnant with her first child shortly after landing a major contract for her firm. Ambivalent about leaving at a critical time Ellen grudgingly agrees to the hiring of Paula for maternity cover but grows increasingly alarmed as Paula moves in on her colleagues, clients and friends. When Ellen voices fears of being pushed out she is labelled as paranoid - everyone thinks Paula is brilliant. But when a tragic accident occurs at the project site, Ellen becomes obsessed with finding out who Paula really is, with startling consequences.
Maternity leave and cover should not be this dramatic. Equipped with knowledge of their legal rights and responsibilities, employers and employees alike can help ensure a seamless transition and avoid costly disruptions and legal disputes. Below we address some of the key questions from the point of view of the person going on maternity leave, the person providing temporary maternity cover (the “replacement”) and the employer.
What is maternity leave and who can take it?
Employees are legally entitled to a maximum of one year of maternity leave regardless of how long they have been employed, how much they are paid or how many hours they work. Note that workers and self-employed persons are not entitled to maternity leave. Note also that there are service requirements that need to be met before an employee is entitled to receive maternity pay.
To benefit from maternity leave, the employee must tell the employer, preferably in writing, what her due date is and when she wants to start her leave and she must do this no later than 15 weeks before the expected week of childbirth. The employer then has 28 days to confirm in writing the date that the maternity leave will end.
What if an employee wants to take longer than a year?
Whilst employers may permit an employee to take longer, the statutory limit on maternity leave is one year. Any additional time taken will not be considered maternity leave and there will not be maternity rights during that time. If an employer and employee agree to extra time, the terms of that agreement should be carefully negotiated and set out in writing.
Are employees entitled to holiday while on maternity leave?
Employees accrue holiday as normal while on maternity leave. If an employee cannot take holiday because of maternity leave, the employer should allow the employee to carry over up to 5.6 weeks of unused days into the next holiday year.
Can employers deny a maternity leave request?
An employer who denies a maternity leave request which has been given in accordance with the notice provisions faces a very real risk of discrimination claims. An employee may have grounds for such a claim if they experience problems obtaining their maternity rights, feel they are treated badly by the employer for asking for those rights or for any reason connected to the pregnancy or maternity. Employees who want to bring a maternity-related discrimination claim only have three months from the date that the discrimination occurred to do so.
What rights does an employee have while on maternity leave?
During the leave, the employee is entitled to benefit from all the normal terms and conditions of employment, except wages or salary. She can, however, do up to 10 days' work during her maternity leave without losing any maternity pay; these are known as keeping in touch or “KIT” days.
At the end of the one year maternity leave, the employee has the right to return to her original job and if that is not possible then a similar job on the same terms and conditions. If a redundancy situation arises, she must be offered a suitable alternative vacancy if one is available. If there is no suitable alternative work, she may be entitled to redundancy pay.
Does the replacement have any rights during the covering period?
When the employer recruits someone temporarily to cover the work of an employee absent on maternity leave, it is vital that the offer and contract are in writing and that the employer makes clear that the role is temporary, for a fixed term and to cover maternity leave. The fixed-term employee’s terms of employment should be no less favourable than those offered on a permanent basis. Once employed, the replacement has the right not to be subjected to any detriment because they are on a fixed-term contract.
What are the rights of the returning employee and the replacement when maternity leave ends?
The returning employee has the right to return to the same job that she was employed in before her maternity leave started, unless this is not reasonably practicable – for example, because of a restructure.
In order to enable the employee to return following maternity leave, the employer will usually be able to dismiss the replacement for “some other substantial reason”. The employer can strengthen its legal position, and limit the potential for claims, by informing the replacement in writing at the time of recruitment that his or her employment will be terminated when the absent employee returns to work; and the dismissal is to enable the employee on maternity leave to be given work. The employer should also make sure that it acts reasonably, for example by following a fair procedure.
If the employee on maternity leave decides not to return to work is the employer obliged to offer the role to the replacement?
There is no absolute right for a covering employee to be offered a permanent role. However, if not offered the role, there is a risk that the covering employee will argue that she or he was subject to discrimination.
What if the replacement is better at the job than the returning one?
In this situation the employer might be tempted to keep the covering employee over the returning one. This is likely to cause problems as the returning employee has a legal right to return to her job and should not suffer a detriment as the result of being on maternity leave. If the employer refuses to allow the permanent employee to return to her role it runs the risk of claims for unfair dismissal and/or discrimination based on maternity and/or sex.
Written by Alexandra Bonner and Morgan Wolfe