Your Employment after Birth Injury – Q&A
“Do I have to tell my employer?”
Whilst it is a very personal decision and you may find it a difficult conversation, it may be advisable to tell your employer (such as your immediate line manager or HR) about your health situation. If you do not discuss it with them, they will not be able to provide support and make any necessary adjustments to assist you (see below).
There is, however, no legal obligation on you to tell your employer about your health situation and some women prefer to keep it to themselves.
If you decide to tell your employer, tell them in good time prior to your return to work, so that you can discuss any changes you may need in advance of your return date.
“I’m too unwell to return to work following the birth of my child. What should I do?”
Do not return to work if you are unable to do so. You may be entitled to time off sick if you are too ill to return as a result of post-natal incontinence. What you will be paid and for how long will depend on your employer’s sick pay policy. You may be entitled to statutory sick pay. Some employees will benefit from enhanced sick pay from their employer. Being signed off sick may help with a temporary condition but, in the long term, if you are suffering such severe symptoms that you may not be able to return, this will not be a suitable solution.
You could also consider using up any holiday entitlement – accrued annual leave – prior to your return to work. Holiday continues to accrue during maternity leave and this would extend your period of leave. However, if you are experiencing ongoing difficulties, then taking holiday is only a short-term measure.
A phased return to work may be useful, to give you an opportunity to determine whether your job is doable in light of your changed circumstances and whether any changes may need to be made. You may be entitled to certain benefits if you cannot return to work because of incontinence (further advice can be obtained from your trades union, local job centres or the Citizens Advice Bureau).
“Does my employer have to make changes to my role?”
It may be that asking for changes to your role may make it easier for you to work. For example, a change in hours, break times, days of work, certain duties or your overall role may assist. A desk job may be easier to do than a job which involves travel and heavy lifting. You may be better able to come to work at 10am rather than 9am. It may be as simple as moving to sit in an office nearest to the facilities.
Your employer does not have to agree to such requests. However, they may be willing to do so if it will help you to return to work. Furthermore, in certain circumstances, they may be under a duty to make “reasonable adjustments” to your role or duties. You may have a potential legal claim if such adjustments are not considered or made, or if you are treated less favourably than others because of your incontinence, or because of something arising from your incontinence.
If you feel you simply cannot return to work, you may decide to resign, giving the required notice. Hopefully, this is the last resort.
“Can my employer dismiss me if I can’t work?”
If you are off sick for a long period or cannot perform your role as you used to, then in theory your employer could dismiss you as you are unable to perform your role. However, employees have certain rights in such circumstances. Employees have the right not to be unfairly dismissed if they have two years’ or more continuous service. The employer must have a fair reason for the dismissal and must carry out a fair process. Further, employees in such circumstances may be protected from disability discrimination. Depending on the impact of your condition (that is whether it qualifies as a disability for these purposes), this protection may mean that there are additional obligations on your employer to adjust, offer alternatives and to consider the impact of your particular circumstances on your ability to carry out your role, before moving to dismissal.
If you believe you are being treated unfairly, you should speak with your trade union, ACAS (the Advisory, Conciliation and Arbitration Service) or seek legal advice.