Can an employer request that an employee returning from maternity leave on a part-time basis pay back a proportion of their contractual maternity pay?

Can an employer request that an employee returning from maternity leave on a part-time basis (when they had previously worked full-time) pay back a proportion of their contractual maternity pay? For example, if they are returning to work for 50% of their previous working hours, they have to pay back 50% of the contractual maternity pay. Or is that less favourable treatment for a part-time worker?

Putting aside any potential less favourable treatment argument, whether the employer is contractually entitled to do this will depend upon the terms of the employee's contract of employment and any policy on contractual maternity pay. If there is no contractual mechanism for the employer to recover payment in these circumstances then it would risk a breach of contract or unlawful deductions claim in doing so.

On the face of it, there may well be an argument that requiring an employee to repay part of their maternity pay because they have become a part-time employee amounts to less favourable treatment on the grounds of their part-time status, but this is a point you would need to consider on the facts. The pro rata principle could arguably be relevant, but given that the maternity pay was paid at a time where the employee was still on a full-time contract, it may be difficult to argue that that pay should be retrospectively prorated purely because they subsequently moved to a part-time contract.

The more difficult question is likely to be whether the employer can objectively justify that treatment. Whether or not they can do so will be fact-dependent.

It may also be worth considering whether the requirement to repay part of maternity pay acts as a deterrent to women making flexible working requests, and whether there could be an indirect sex discrimination argument in that context and the resources that it links to for general information on indirect discrimination.

We think that it would be fairly unusual for an employer to take the approach that is described. Although it is not uncommon to see clawback clauses where an employee leaves employment altogether, there are trickier issues to consider where the employee remains in employment and has consensually been permitted to reduce their hours.