Question
An employee on maternity leave told me 3 months ago that she planned to come back to work next week but now she's changed her mind - can she do this?
Answer
An employee can choose to take between 2 and 52 weeks maternity leave. Unless the employee says otherwise, the expected date of her return will be at the end of the 52 week period. If an employee wants to return before then, she must give you 8 weeks' notice. She can change her mind, but she will have to give further notice of 8 weeks before the original return date if she wants to delay this or 8 weeks before the new return date if she wants to come back earlier.
In this case, she has not given you 8 weeks notice of her change in return date. She has failed to comply with the law and you could seek to hold her to the return date next week. A failure by her to return to work could be treated as a disciplinary matter. However, this approach should be treated with caution, because if you treat an employee less favourably due to the fact that she is on maternity leave she may bring claims for unlawful detriment or sex discrimination.
You must act reasonably and fairly as an employer, so that from a practical perspective it may be wise to have a conversation with her first and explain that she has not given you enough notice and the problems that this poses to your business, for example arranging cover for her work. It may be the case that you can negotiate with her and meet a compromise on her return date. In practical terms, if you do refuse the continuing maternity leave and the employee really needs the extension, they may simply apply for unpaid parental leave or holiday anyway.
There is an exception to the 8 week notice rule, if you failed to give her notice of the date when her 52 week maternity leave comes to an end. For this reason, it is important to remember to give this notice to any employee who goes on maternity leave.
If you would like to know more, please contact Tony Hyams-Parish, Head of Employment, in confidence and without obligation by emailing Tony or by calling him on 08450 990045, or speak to your usual contact in the Employment Team.
This answer is provided for information only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this article.
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