Maternity leave cover clause

Our clause can be included in an employment contract where the individual is to be employed to provide cover for a fixed-term period for an employee going on maternity leave.

Potentially fair dismissal reason

S.106 Employment Rights Act 1996 says that where, on engagement, you notify an employee (A) in writing that their employment will terminate on the return to work of another employee (B) who is, or will be, absent due to pregnancy or childbirth and you then dismiss A to facilitate B’s return to work, A will be regarded as having been dismissed for “some other substantial reason” (SOSR). This doesn’t mean the dismissal will necessarily be found to be fair, so you’d still need to go through a fair dismissal procedure (including considering alternative vacancies and having a meeting with A), but it does mean you would have a potentially fair reason for dismissal, i.e. SOSR. However, as an employee needs two years’ continuous employment to claim ordinary unfair dismissal, and most maternity cover is for a year (or less), in practice you might not need to worry about this too much. It’s more likely to be an issue if a temporary employee provides successive maternity covers for a couple of absent staff. Our Maternity Leave Cover Clause complies with the requirements of s.106 by notifying the employee in writing that their employment will be terminated on the return to work of the postholder on maternity leave whose role they’re covering. It can also easily be amended for use where an employee is appointed to cover a period of adoption leave.

Return to work date

Our clause provides for the employment to terminate on the earlier of the final working day of the postholder’s additional maternity leave or the working day immediately before the day on which the postholder has notified you that they’ll return to work. The latter allows for the possibility of the postholder returning to work early from maternity leave. Given that they must give you at least eight weeks’ notice of an early return date, you’d then be able to hold discussions with the maternity cover employee in plenty of time before the postholder returns to work. If the postholder doesn’t give you notice of an early return, their expected return date will be the next working day after the end of their additional maternity leave period - and therefore our clause gives the end of the postholder’s additional maternity leave as the current expected end date of the fixed-term contract, but then makes it clear that you can’t guarantee any minimum or maximum period of employment and neither can you guarantee any further or alternative employment at the end of the fixed-term contract.

Termination on notice

Our clause also enables either party to terminate the fixed-term contract earlier on notice at any time in case the arrangement isn’t working out. This can simply be by cross-reference to a suitable notice clause that appears elsewhere in the contract.