The legislation imposes certain notice requirements on women who want to return from maternity leave early (notice of early return ) and specifies the terms and conditions that apply to returners (the job on return ). There are also legal considerations for an employer to bear in mind if an employee fails to return to work after her leave (failure to return ). The legal position of employees who want to change their working hours or place of work when they return from maternity leave is discussed separately below (the right to request flexible working ).
If an employee takes her full maternity leave entitlement, she does not have to give her employer any notice of her return to work. The company must assume that she will come back to work at the end of her maximum possible leave. But if the employee wants to return to work early, before the end of the full maternity leave period, or if having fixed a return date, she wishes to change it, she must give the company 8 weeks' prior notice. This notice need not be in writing.
If an employee returns early without giving any notice or sufficient notice, the company can postpone her return to a date that will ensure that it has the appropriate notice of her return, and it need not pay her until that date. The company cannot, however, postpone her return beyond the end of what would have been her maximum maternity leave. An employer has no right to postpone an employee's return in this way if it did not confirm to her the date on which she was due to return to work (confirmation of return date ).
Broadly speaking, an employee returning to work after maternity leave is entitled to return to the same job as she was doing before she went away. However, if she is returning from additional maternity leave and it is not practicable to allow her to return to her original job, she can be given a suitable alternative, provided the status and terms and conditions of the new job are as good as those of her old job.
A company that wants to take up this option should first ensure that it has grounds for maintaining that it was not practicable to keep the woman's original job open for her. Larger employers may find it difficult to show that it was not possible to make arrangements for cover. The offer of suitable alternative work can also come from an associated employer (change of employer ).
On her return to work, an employee's terms and conditions must be as good as those that would have applied to her had she not been away.
There are complicated rules on the position of an employee who returns to work after a combination of consecutive periods of family leave. The rules that apply where an employee takes a period of parental leave after her maternity leave are set out elsewhere in this section (rights after leave ). Companies who need advice on other situations should contact their Association.
It is important to note that, once an employee's maternity leave is over, she remains an employee. If she does not return to work, she should not be viewed as having resigned unless there is clear evidence that she has, such as a letter or a telephone call from her saying that she will not be coming back. If she telephones with that news, it would be advisable to ask her to put her resignation in writing.
An employer should treat a woman who does not return to work after maternity leave in the same way as it treats other employees who fail to return to work after a period of authorised absence. If it does not do so, it may face allegations of unfair dismissal, sex discrimination or unfavourable treatment linked to pregnancy and maternity (unfair dismissal ). In particular, if a woman is ill at the end of maternity leave, she should be dealt with in a way that takes no account of any periods of absence linked to her pregnancy or maternity leave.
Once a woman's maternity leave is over, all her usual contractual terms come back into force. So if she is unable to return to work because of illness, she may be entitled to sick pay.