Creating a fairer Britain
The Equality Act came into force on 1 October 10. Some of the information on this page may be out of date.
Employers have a range of options for organising maternity or adoption cover. The main options are using agency or ‘temp’ staff, recruiting a staff member on a fixed term contract, internal recruitment, and redistributing tasks amongst existing staff.
Different employers choose different options, depending on the nature of their business, the particular skills required to do the job, the skills of existing staff members, the nature of the local labour market, and their financial resources.
It is a good idea to discuss maternity cover options with the pregnant employee early in the pregnancy and to discuss adoption cover with the adopting employee prior to commencing leave. It is also a good idea to discuss with other staff members how a forthcoming maternity or adoption leave will be managed.
Agency staff are recruited by businesses through employment agencies. As a general rule, agency workers are employees of the employment agency and not employees of the business. It is for the employment agency and the business to agree terms between them, such as methods of recruitment and hourly rates.
In certain circumstances an agency worker may be deemed an employee of the business. If you are concerned that this may be the case, you should discuss it with the employment agency and/or Acas.
Taking on agency staff can be a flexible option. Employers can take on staff on a short term basis, tailoring staffing to the needs of the business at any given time. As notice for agency staff is very short, it is easy for an employer to end the arrangement if the permanent staff member decides to end her maternity leave early.
Using agency staff can be an uncertain option. Agency staff may change several times throughout the maternity leave period and an employer will not always know how long a particular person is available for work. An employer may only have limited control over the skills and experience of the agency staff member allocated to the job. The hourly rate for agency staff is generally higher than the hourly rate for an employee. In some areas, agency staff with relevant skills may not be available.
Staff on fixed term contracts are employees and have the same employment rights as permanent employees. For example, they are entitled to notice, sick pay and holiday leave in the normal way.
Taking on a new employee for a fixed period can offer a degree of certainty for an employer and allows you to choose the right employee for the job.
As the employee on maternity or adoption leave is entitled to end their leave early, it is difficult for an employer to provide certainty about the length of the contract. This may make recruitment more difficult.
Internal recruitment is where an existing staff member moves from their current job to the job of the employee on leave. Redistribution of tasks is where the tasks of the employee on leave are shared around between other staff.
Internal recruitment and redistribution of tasks can have a positive effect on a business. It may present development opportunities to more junior staff or broaden the skill base of other workers. Employers may wish to rotate other staff through the employee’s position.
Redistribution of tasks will require negotiation with staff members. Depending on the nature and quantity of work, it may be appropriate to increase staff salaries to recognise the additional work. It may be necessary to recruit an agency or fixed term staff member for a more junior position in order to free up existing staff to take on additional tasks.
When a staff member is recruited on a fixed term contract, they have the same employment rights as permanent employees. For example, they are entitled to notice, sick pay and holiday pay and they must not be discriminated against on the basis of their fixed term status.
Employees are entitled to return early from maternity or adoption leave. Employees wishing to return to work before the end of their 52 weeks’ maternity or adoption leave must give 8 weeks notice of the date of early return. Consequently, you may wish to offer a fixed term contract which allows you to end the contract at any time, and not only when the fixed period has expired. You may wish to consider setting a notice period of 8 weeks or less. When the fixed term contract is terminated by the employer or expires, any applicable dispute resolution procedure should be followed. More information is available from the Acas website and advice line.
To effectively manage a fixed term contract, it is a good idea to have a written contract. It is important to state the start and finish dates. Where you want the right to end the contract by giving notice prior to the stated finish date, the contract should clearly state that the employer is entitled to do this.
If a fixed term contract is to be renewed, it is a good idea to confirm the new finish date in writing.
Under some circumstances, an employee on a fixed term contract can be considered to be a permanent employee without having received a formal offer of a permanent position. This is discussed in ‘the law’ section. It is a good idea to be aware of this possibility, as it can result in increased costs, such as redundancy payments or actions for unfair dismissal. More information is available from the Acas website and advice line.
You may wish to make a formal offer of permanent employment to the employee on a fixed term contract. You should ensure that any job offer is consistent with the rights of the employee on maternity or adoption leave to return to the same job. For more information on the rights of the returning employee, see the Returning from maternity leave and Returning from adoption leave sections of this toolkit.
Recruiting internally or redistributing tasks can mean a change in the job description of the staff taking on new or different work. It is a good idea for you to discuss and agree any change with the staff. Employers have some powers to direct staff to take on new or different work. The scope of this flexibility will depend on the nature of the position held by the employee, the employee’s contract of employment and job description. Employers must not unilaterally alter an employee’s terms and conditions of employment. You should contact Acas for more information in relation to this.
You may need to consider increasing salaries while members of staff are performing additional tasks or higher duties.
You should ensure that any arrangements are consistent with the rights of the employee on maternity or adoption leave to return to the same job. For more information on the rights of the returning employee, see the Returning from maternity leave and Returning from adoption leave sections of this toolkit.
You may wish to agree and confirm in writing with affected staff that the changed arrangements are for the duration of the maternity leave.
It is a good idea to consider what you would do if one of the remaining staff were to require extended leave, such as sick leave or maternity leave.