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Esther Smith

Thomas Eggar


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Ask the Expert: Can staff change the goalposts over maternity leave?


The question

I have a staff member who has taken all of her Ordinary Maternity Leave and is now into Additional Maternity Leave.
Prior to the leave starting, she notified us that she wished to return during her AML (to come back in September), but would take an additional period of holiday so that she returned in October. She is not using all of her AML weeks.
But she has now changed her mind and said that she wants to take all of her AML. We’ve never dealt with maternity leave before and I can’t find any guidance on this subject – so, is she able to take this leave, and if so how much notice does she need to give us? Also do we have to agree?
The legal verdict
Esther Smith, partner at Thomas Eggar
I am afraid that this employee is entitled to change her mind, and taking any action to force her to return early or prevent her from returning when she wants to, would be very risky indeed. 
She isn’t entitled to take leave in excess of her AML, however, unless, of course, it is holiday. She also doesn’t really need to give notice, apart from if she wants to return early from her AML, which is clearly not the case here. 
Esther Smith is a partner in Thomas Eggar‘s employment law unit.
David Ludlow, head of employment law at Barlow Robbins
The starting point is to check whether you provided the employee with a statement (in writing) when she first notified you of her intention to start her OML, informing her of the date on which her AML would end.
If you did not take that important procedural step, you are precluded from objecting if she subsequently comes back to work too late or too early. Her right to return to work is limited to a right to return at the end of her AML, or at an earlier date if she gave proper notice of that earlier date.
If she has given notice to return early (on a date before the end of her AML), she may still decide to return to work at a later date provided that she gives eight weeks’ notice before the original return date. This notice need not be given in writing (unlike the notice of a change of return date during the OML period, which must be in writing!).
Some commentators suggest that, if the requisite eight weeks’ notice has been received, you should write to her again within 28 days and confirm the new later return date.
The regulations are not clear on this point and so it would seem sensible to do so. It is always possible to agree to any request and subsequently accept less than the requisite notice.
But if the employee does not provide the requisite eight weeks’ notice, she will lose her automatic right to return at the end of her AML (52 week period) – unless again you failed to provide her with a statement informing her of the date on which her AML would end.
Statutory holiday
It is possible that by changing her return date in breach of strict notice requirements, she might, depending on the precise reasons for her change of mind and her attitude towards her employment, be in fundamental breach of contract.
You could then, in theory, terminate her employment for misconduct or some other substantial and potentially fair reason. However, you should exercise very considerable caution when considering this possibility and ensure that you comply with fair disciplinary procedures.
Otherwise it would be easy to assume that the reason for dismissal related to the fact that she was either on or had taken statutory maternity leave, giving rise to claims for unfair dismissal or sex discrimination.
If the employee gave the requisite notice to come back later than she had originally intended at the end of her AML, she could postpone her return beyond that date or even further if she were sick or entitled to take annual leave or statutory parental leave.
However, in either event, she must comply with any contractual reporting obligations or statutory notice requirements for taking proposed holiday.
If she proposes to tack holiday onto the end of her maternity leave period and it causes you genuine operational problems, you could object to her taking leave at that time, provided that you give the requisite notice under the Working Time Regulations that govern statutory holiday.
Further guidance is provided on the Business Link website.
David Ludlow is head of employment law at Barlow Robbins LLP.
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Esther Smith


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