MATERNITY LEAVE - 30.11.2023

No intention to return from maternity leave

Sometimes an employee will decide that they don’t want to return to work after maternity leave. If you find yourself in this situation, can you simply draw a line under their employment, or must the employee still formally resign?

No return

Statutory maternity leave is a day-one employment right, i.e. there is no continuous period of employment requirement, and it comprises 26 weeks’ ordinary maternity leave and 26 weeks’ additional maternity leave .

Now let’s suppose that one of your employees who is on maternity leave has contacted you to say that they don’t wish to return to work after their maternity leave has finished.

End things there?

In this situation, can you terminate the employee’s employment immediately or are they obliged to work out their notice period? Whilst the employee might not want to return to work - and this may also be your preference - they are obliged to formally resign from their job role and are bound by the notice provisions in their employment contract.

Practical effect

Assuming the employee’s contractual notice period will expire during the period of maternity leave , the employee won’t return to work and their employment will end when their notice expires.

However, if the employee’s notice period will expire after their maternity leave has ended, which might be possible if they have a lengthy notice period due to their job role or seniority, you can specifically require them to return to work to serve out the remainder of the notice period.

Why insist?

If you don’t hold the employee to the notice provisions set out in their employment contract, they will have a right to be paid for any part of their notice period which you don’t require them to work. So, it’s going to cost you.

Conversely, if the employee fails to return to work out their notice period, or they bluntly refuse to do so, they’ve no right to be paid by you. If they’re unwilling to work, they’ll be in breach of their employment contract.

Put it in writing

If you’re faced with this situation, it’s best to write to the employee with a reminder of their contractual notice period and request their formal resignation (see The next step ).

You can then explain when their employment would be likely to end based on their indicated intention, i.e. during or after their maternity leave , which will depend on the notice provisions in their employment contract.

Tip. Unless the employee formally resigns, they will have the right to return to work. So, always assume that the employee will be returning until you’ve received a formal notice of resignation. Anything else is an intention to resign and they can’t be held to that intention.

Tip. An employee who wishes to return to work at the end of their maternity leave isn’t required to give you any notice - all they have to do is report for work on their anticipated return date.

For a letter to employee not returning from maternity leave, visit https://www.tips-and-advice.co.uk , Download Zone, year 25, issue 22.

You could draw a line under their employment there and then, but the employee will have a right to be paid for any part of their notice period which you don’t require them to work. Therefore, it’s best to ask for their formal resignation in writing. Until an employee formally resigns, they have a right to automatically return to work.