Guest blog by Danielle Ayers, Maternity Discrimination expert, Gorvins Solicitors
According to NHS Direct, “Postnatal depression is a type of depression that many parents experience after having a baby. It’s a common problem, affecting more than 1 in every 10 women within a year of giving birth. It can also affect fathers and partners, although this is less common.”
As a maternity discrimination lawyer, I deal with many enquiries from women who are considering returning to work whilst or after suffering from postnatal depression.
Furthermore, there are also those who return to work and are then diagnosed with the condition. We encourage employers to be as supportive as possible to new parents – in most cases, reasonable adjustments to help new parents adjust are all that is required to retain a valuable employee.
Do employees with postnatal depression have any employment rights?
Workers suffering from postnatal depression may be entitled to certain rights under the Equality Act, depending on its severity and length. To qualify, the condition needs to have lasted, or be expected to last, at least 12 months and it must also have a substantial impact on your day to day activities. Whilst most women suffering from postnatal depression are not likely to meet this test at the point when they are due to return to work, in some circumstances, individuals may qualify.
If this is the case, the employer is under a duty to consider reasonable adjustments, if these would assist the employee and enable them to return to work. Reasonable adjustments may include being able to work reduced hours, on a part-time basis or returning to a less stressful role.
Employees also have the right not to be discriminated against because of their disability or because of a reason arising from the same, unless this can be justified.
What happens if the postnatal depression arises after the employee returns to work?
In many cases, there is no specific protection for employees who are sick once they have returned to work following maternity leave. If an employee is unable to work due to postnatal depression, provisions relating to sickness absence will apply.
Employees are therefore expected to follow any sickness absence policies that the employer has in place – such as:
- notifying the employer of sickness within required timeframes
- providing self-certifications forms or fit notes, where necessary.
- If employee entitlement to maternity / parental pay has been exhausted at this juncture, the employee will be entitled to pay in line with their contract of employment (usually statutory sick pay, if there is no enhanced contractual provision).
If an employee is absent for a significant period of time, the employer may look to implement a sickness absence procedure depending on their sickness absence policies.
This may, for example, involve contacting the employee’s GP, or referring them to an Occupational Health Physician for an assessment, in order to determine if / when an employee is likely to be able to return to work and whether any adjustments to the role could be made to help them to return sooner.
What if an employee is unable to return in the foreseeable future?
Unfortunately, if the medical evidence points towards the fact that an employee is not likely to return to work in the foreseeable future, the employer can legally make a decision to terminate employment on capability grounds, provided they follow the correct procedure. We always advise employers to seek specific advice on each individual claim, and remember too that there are business and PR reasons rather than just legal issues to consider when terminating an individual’s employment.
I have postnatal depression – what are my options for returning to work?
If you are suffering from postnatal depression, and thinking of returning to work, you need to seriously consider all the options open to you.
You are entitled to 52 weeks of maternity leave and although the last 13 weeks are unpaid, some further time off work (whether paid or not) may assist recovery.
Many women do not realise that they accrue holidays whilst on maternity leave and you could therefore speak to your employer to see whether this can be added on to the end of your maternity leave, meaning you do not have to return to work as soon as you previously thought.
You can take parental leave, which is usually unpaid although some employers do pay employees during this leave.
You can also make a flexible working request, to ask your employer whether your hours or working days can be reduced, in a way which would assist you.
If you have taken all other leave available to you and you are not well enough to return to work, you can take sick leave.