Employee Fails To Return From Maternity Leave

When an employee, who has taken a period of maternity leave, fails to return to work at the end of that period and the employer moved straight to terminating the employee’s employment it will be unfair dismissal and may also amount to sex discrimination.

Investigate The Reasons

The first step when an employee fails to return from maternity leave would be to make reasonable enquiries to establish why she has failed to return to work before deciding on what action should be taken.

  • If she is unable to attend work because she is ill you should treat her in the same way you would treat any other employee who is absent from work due to sickness, your normal contractual arrangements for sickness absence will apply, she should notify you of her absence in the usual way and where necessary provide medical certificates to cover her absence, statutory amd/or company sick pay will be payable. The day on which the employee should have returned to work will be the first day of her period of sickness absence.
  • If she has decided that she does not wish to return to work at all after her maternity leave, she should give you the notice of termination of employment required by her contract of employment or, where there is none, the statutory notice period of one week. If the notice period would expire after the employee’s maternity leave has ended you may require her to return to work to serve out the remainder of the notice period. If she fails to comply you should make it clear that she has no right to be paid for any part of the notice period that she is not willing to work.
A scenario I frequently find is that the employer has not notified the employee in writing of her due date of return prior to starting her maternity leave. If this is the case then the employer has to take some responsibility for the employee’s confusion because employers are under a statutory obligation to respond to an employee’s notification of her maternity leave plans within 28 days. The response from the employer should set out the date on which it expects her to return to work if she takes her full entitlement to maternity leave. Therefore when this response has been omitted from the process the employer will not be able to penalise the employee, by dismissing her or subjecting her to any other detriment, for not returning to work on the expected date.

If your investigations determine that the employee is knowingly taking unauthorised absence because she does not want to return to work yet, you should commence formal disciplinary action for unauthorised absence.

Top Tips

  • An employer might wish to build into its disciplinary code a provision that employees must notify their manager as soon as they are aware that they cannot return on the due date, and advise employees of any possible consequences of the failure to return on time.
  • Any resignation should be obtained in writing to ensure their is no confusion on either side.

Letter To An Employee Who Has Failed To Return To Work After Maternity Leave

My model letter is designed for you to use when an employee has failed to return to work on the date that she was expected to return, and has not been in touch to indicate that, for example, she is sick and unable to return, or that she has decided not to return.

To download the Letter To An Employee Who Has Failed To Return To Work After Maternity Leave complete your details below and an email containing the document will find it’s way to your inbox:

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Employee Fails To Return From Maternity Leave

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