What should you do if an employee, who is due to return to work after maternity leave, calls at the last minute to say she is not returning for a while due to a sick child? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, advise.

The question:

I have an employee who is coming to the end of her 52 weeks maternity leave and she is due to return next week.

However, today she has called us to say that her child is sick and she will not be returning until August at the earliest.

Although we are, of course, sympathetic about her situation we have planned for her return and cannot continue to cope without her for another three months. I also worry that in August she will still not be in a position to return and effectively we will have given the green light to never-ending unpaid leave.

Can anyone advise me on how they would tackle this delicate situation. We don’t want to be unreasonable – but are we supposed to just keep her job open indefinitely? Previously I have read that if an employee fails to return from maternity leave, then they are absent without authorisation.

Anna Brown

Legal advice:

Esther Smith, partner, Thomas Eggar

Whilst this is a delicate situation, there is no obligation for you to keep her job open indefinitely. An employee can only extend their maternity leave by taking some other form of statutory leave, annual holiday or by agreement with the employer.

She has a statutory right to return to her job, or in certain circumstances a job that is materially similar, following her maternity leave. If she chooses not to take up that right of return, her employment can come to an end. However, on a practical level, I suggest that having received her communication today you write to her to ask her to meet with you to discuss matters, and make it clear to her that the company cannot keep her position open indefinitely. You should also make it clear to her the consequences of not returning at the end of her period of leave, and the fact that it may cause her employment to come to an end.

If she is aware of this and still does not wish to return, or is not able to, then you can treat her failure to return from leave as termination of employment. You do need to be a little cautious if the employee is seeking to take some other form of statutory leave at the end of her maternity leave, such as parental leave or dependents’ care leave, but it does not appear that this is the case here, due to the length of time she is wanting to take. However, I would clarify this with her when you meet.

There is of course nothing to stop you as an employer agreeing to her request initially but making it clear to her that if she does not return in August you will have to consider termination at that time. At the end of the day, you need to do what is right for the business.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar

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Martin Brewer, partner and employment law specialist, Mills and Reeve

Anna, your employee would now appear to be on unpaid leave. This may also be unauthorised, depending on what you have said. Clearly if you have authorised the leave you are stuck with that. However, it does not mean you will have to agree anything beyond August. On the other hand, if you have not authorised the leave then you must deal with this absence as you would with any unauthorised leave.

Whether you act now or later you must follow a proper process: investigate and establish the facts, move to a hearing and if appropriate, dismiss. Just because an employee has given birth there are no special rights to take leave ‘as and when’ the new mother wants to. There are rights for the employee to seek flexible working and take leave for urgent domestic reasons. Thus you need to have some discussion with this employee about the problem, the prognosis, why she specifically requires three months (which sounds odd in itself) and whether there is any support you can offer to assist her back to work making it clear that just having another three months is not an option for you. Be firm but fair.

Martin can be contacted at: martin.brewer@mills-reeve.com

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