Your work questions answered: Does a special arrangement for a colleague’s maternity leave set a legal precedent for me?

Q: I’m currently pregnant and not eligible for my employer’s current maternity policy (you have to be there three years for this). One of my colleagues who went on maternity leave (same level as me, and in employment with the same employer for less time than me) was offered a special arrangement (and better than the company policy) for her leave. Does this set any legal precedent for me?

Also, is an agreement to return for a specified period after taking maternity leave legally binding? I fear if they make an offer, they would want me to sign an agreement to return. It’s not that I would plan to leave after taking leave, but I am aware that my circumstances may change as a result of motherhood.

A: To answer this query, we spoke to experts working in human resources and employment law for their perspectives.

There is no legal obligation on employers to provide top-up maternity payments, but it is worth raising the question of an employer contravening their own policy, says independent HR consultant and workplace investigator Michelle Halloran, of Halloran HR Resolutions.

Although there is not necessarily a legal precedent in the reader’s scenario, as circumstances can vary among employees leading to special arrangements, it could benefit them in any negotiations or arguments for better maternity benefits.

“It’s worth raising a query with the HR department asking why there is an exception being made to the policy for someone who has been there for less time than them,” she says.

Alongside the public sector, some larger private companies offer maternity benefits to their employees which, in combination with the State maternity benefit, keep them at their normal rate of pay while on leave.

However, with this benefit usually comes stipulations on returning to work for a specified period, with good practice usually specifying 12 months, she says.

Halloran says there is no obligation to sign an agreement to return to work for a specified period but this would forfeit said benefits.

The sole statutory obligation on behalf of the employee to keep their job open is to notify their intention to return or not at least four weeks before the maternity leave is due to finish.

“By default, if you don’t contact them at all, they might assume that you’re not coming back,” she says.

When maternity leave pops up for Anne O’Connell, principal of employment law firm AOC Solicitors, it usually concerns employees no longer wishing to return to their work despite signing such an agreement, which she confirms at the outset is legally binding.

“When they leave, they genuinely think they’re going to go back,” she says, adding that as maternity leave draws to a close, some employees change their mind.

In the lead-up to maternity leave, employees who are offered bespoke arrangements like top-up payments are normally asked to sign these agreements, she says, because it is a “two-way street”.

“The company is not obliged to pay anything in addition to social welfare and therefore if they do so, they want to ensure that the employee is not just taking the money and not coming back,” she says.

If an employee who has signed such an agreement and receives payment top-ups from their employer for maternity leave decides they do not wish to return to work, the money received will have to be repaid.

Should an employee receiving top-up payments have a change of heart about returning, O’Connell said they should stop the payments as soon as possible, as the bill will only increase.

They should then contact their employer as soon as possible to improve their odds of a more favourable and manageable phased repayment agreement.

“They have to look at it from both sides – you’ve got a company who has designed everything based on that person coming back. If you do inform them suddenly and at late notice, you’re not going to get as good a reaction,” she says.

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