Introduction to this document

Failure to return from maternity leave letter

If an employee who has been on maternity leave fails to report for work on her due date of return, use our failure to return from maternity leave letter to try and establish what the position is. Never be tempted to dismiss her on account of her failure to return and don’t make an assumption that she’s resigned.

Time off rights

All pregnant employees, regardless of their length of service, have the right to take up to 26 weeks’ ordinary maternity leave and up to a further 26 weeks’ additional maternity leave. Employees are therefore entitled to a total period of 52 weeks’ maternity leave. What this means in practice is that your employee is then due back at work on the next working day after the end of the 52-week period. In addition, your employee also has the right to return earlier than the 52-week point if she wants, provided she gives you at least eight weeks’ notice of her intended early return date. Our letter therefore covers both scenarios: the employee failing to return after the full 52 weeks or failing to return after having notified you of an earlier return date.

Missing mum

If an employee fails to return at the end of her maternity leave, you should start by making reasonable enquiries as soon as possible to establish the reason for her non-return before deciding what action, if any, to take. Under no circumstances should you write dismissing her on account of her failure to return or telling her that she’s lost her right to return. Such a termination would constitute unfair dismissal and amount to sex discrimination. Don’t just assume she’s resigned either. In this scenario, use our Failure to Return from Maternity Leave Letter to find out what’s going on.

Too sick to return

If it transpires your employee is unable to return to work on account of sickness, treat her in the same way as you would treat any other employee absent from work due to sickness. In these circumstances, she’s under a duty to notify you that she is sick and unable to come to work and provide a self-certificate or medical evidence of her incapacity. Our letter makes clear that, in this scenario, your normal company sickness absence arrangements apply.

Not coming back

If your employee decides that she doesn’t wish to return to work at all after her maternity leave, she’s obliged to give you proper notice of her resignation under the terms of her contract of employment or, if there is no notice provision in her contract, statutory minimum notice of one week. If the notice period would expire after her maternity leave has ended, you can in theory require her to return to work to serve out the remainder of the notice period. If she fails to do so, make it clear to her that she has no right to be paid for any part of her notice period that she is not willing to work. All of this is included in our letter and it also asks her to confirm any resignation in writing.

Disciplinary action

If you subsequently establish that your employee has knowingly taken extra time off work at the end of her maternity leave without justification, you will be able to take disciplinary action against her for her unauthorised absence, but always take care not to make assumptions that this is the case. However, there’s an important point to be aware of here. Under the statutory provisions, once an employee provided proper notification to you of her intention to take maternity leave, you were obliged to have responded to her in writing within 28 days acknowledging her intentions and informing her of the date on which her full 52-week entitlement to maternity leave would end. If you did not properly notify your employee in writing of the date on which her maternity leave was due to end, you won’t be able to penalise her, by dismissing her or subjecting her to any other detriment, such as taking disciplinary action against her, for not returning to work on the expected date.