Question: I’m presently expecting a baby and unfortunately, I don’t qualify for the current maternity policy of my workplace (you need to have been in the company for three years to be eligible). Interestingly, a co-worker of mine, (who holds a similar position as I do and has been with the company for a shorter duration) was granted a preferential agreement (which is superior to the company’s policy) for her maternity leave. Can this act as a legal precedent for my case?
As well, when granted maternity benefits, am I legally obliged to return for a specific period after leave? This is a concern because although I don’t intend to leave right after the maternity leave, I realise that motherhood may bring about unforeseen circumstances.
Answer: We sought out the opinions of experts in human resources and employment law to address this inquiry.
Michelle Halloran, an independent HR consultant and workplace investigator from Halloran HR Resolutions, asserted that employers are not under any legal compulsion to offer additional maternity payments. However, she suggested that it would be worthwhile to question if an employer is contradicting its own policy.
Although the reader’s situation does not necessarily establish a legal precedent, given that the special arrangements can be contingent on varied circumstances among employees, it could be used to support negotiations or claims for improved maternity benefits.
Halloran recommended querying the HR department about why the policy is being waived for an employee with less tenure in the company.
She also noted that some large private corporations, in addition to the public sector, provide maternity benefits that, when combined with the State’s maternity benefits, ensure employees maintain their regular pay during leave. However, typically, these benefits go hand in hand with the condition of returning to work for a predetermined period, commonly 12 months.
Halloran further stated that there’s no necessity to sign an agreement to return to work for a defined period – but eschewing this would result in losing the said benefits.
The only statutory requirement for employees to retain their position is to state their intention to return or not a minimum of four weeks before their maternity leave ends.
An employee’s failure to communicate at all could lead the employer to presume she doesn’t intend to return, warns Halloran.
Anne O’Connell of AOC Solicitors, who specialises in employment law, often handles maternity leave cases. In her experience, employees often decide not to return to work even if they have signed a legally binding agreement to do so.
“Often individuals believe they will return to work post-maternity leave, however, their mind-set can change as the end of their leave approaches,” O’Connell explains.
Before they go on maternity leave, employees are typically presented with custom agreements like supplemental payments and are asked to sign them as it is a mutually beneficial arrangement.
O’Connell adds, “The employer isn’t required to pay anything above statutory benefits. If they choose to, it’s because they want the reassurance that the employee isn’t just taking the money and abandoning their role.”
If an employee decides not to return to work after maternity leave despite having received pay top-ups due to such an agreement, O’Connell warns that the funds will need to be returned.
If employees change their minds about returning and are receiving supplemental payments, O’Connell advises them to stop the payments immediately to avoid a mounting bill. It’s also crucial to notify the employer at the earliest opportunity to negotiate an easier and manageable repayment plan.
O’Connell emphasises that employees should consider the employer’s perspective since the company’s plans are typically devised around their return. She advises, “If you unexpectedly notify them at the last minute, they may not react positively.”