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.
Updated in March 2020 to reflect the introduction of the new statutory right to parental bereavement leave and pay, which is available to the parents of a child who dies on or after 6 April 2020.
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.
Did your employee know the date their maternity leave ended?
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 employee 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.
Sometimes an employee simply decides that they do not wish to return to work at all after their maternity leave. In these circumstances 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.
Death of the child
The child may have died and the employee may just not feel upto to telling you what has happened. If this is the case there is a new right to parental bereavement leave and pay that will come into force in April 2020. The Parental Bereavement (Leave and Pay) Act 2018, which has received Royal Assent will introduce an entitlement to be absent from work with pay for bereaved parents, including when a child is stillborn after 24 weeks.
The right will apply to primary carers, not just parents. This includes adopters, foster parents and guardians, as well as more informal groups such as close relatives or family friends who have taken responsibility for the child’s care, for a minimum of 4 weeks, in the absence of parents (known as kinship carers).
The entitlement is to two weeks’ leave following the loss of a child under the age of 18 or a stillbirth after 24 weeks of pregnancy. The minimum amount of leave is one week, if choosing to take two weeks the employee can either take it as two consecutive week or in two separate blocks of one week. The leave must be taken within a 56 week window from the date of the child’s death, to allow time for moments such as anniversaries.
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.
- Consider building into your maternity and disciplinary policies provisions 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.
- All resignations 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.
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