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Question: What control do we have over when an employee can return to work following a period of maternity or adoption leave?
Payroll Tip: When giving notice to take maternity or adoption leave, an employee must provide, no later than the end of the 15th week before the expected week of childbirth (i.e. the “qualifying week”) or within seven days of the adoption matching date,
in the case of maternity leave, the expected week of childbirth
in the case of adoption leave, the expected week of placement, and
in either case, the date from which the employee intends to take the leave.
If the employer requests it, the notice must be given in writing and the MATB1 or matching certificate must be provided.
The employee may subsequently vary the date from which the leave will start by giving 28 days notice to the employer.
Within 28 days of receiving notice to take maternity or adoption leave, the employer is required by law to inform the employee, in writing, of the date on which the period of maternity or adoption leave will end, i.e. the end of ordinary or additional maternity leave, depending on the woman’s entitlements, or the end of additional adoption leave. If the employee later varies the date from which leave will start, the employer must inform the employee of the new end of leave date, doing so no later than 28 days after the start of leave. Failure by the employer to give this information can have serious implications, as will be seen.
This notice requirement on the part of the employer is often met in a more detailed document given to the employee that spells out all aspects of the employee’s maternity/adoption leave and pay entitlements. However, the only statutory part of such a broader document is the requirement to provide the date on which the employee’s full entitlement to leave ends. From that information, the employee must be able to determine the return to work date. For example, an employee who works Monday to Friday and whose leave ends on a Friday must be back at work on the following Monday.
Having given notice to take leave and having received, in return, the employer’s notice of the date on which the leave will end, the employee may take that full period of leave. Even if the employee plans an earlier return to work date, the employer cannot enforce it. The employee has full control over whether to stay on leave for the full six-month or year period, or return to work earlier.
The employer may provide incentives for an earlier return, such as higher contractual maternity or adoption pay, but, if the employee decides to stay at home for the full period of leave, there is nothing the employer can do about it.
The employee does not have to give notice of returning to work at the end of the leave period. However, an employee wishing to return to work earlier must give 28 days’ notice of the return, unless the employer chooses to waive that requirement. The right of an employee to wages or salary under the employment contract does not resume in this situation until the end of the 28-day notice period.
Therefore, if an employee wishes to return to work early, the employer is entitled to refuse permission to return until the 28 days is up. At the end of the 28 days, the employer is contractually obliged to resume payment of wages or salary. If the date on which the employee wishes to return is less than 28 days from the end of the leave period, the employer may only refuse the return until the end of the leave period.
Failure by the employer to provide, in writing, the date on which the leave ends, removes entirely any control the employer might otherwise have over the timing of the employee’s return to work. The law assumes that an employee who has not been given the date on which the leave ends does not know when to return and so may return at any time, without giving notice. The employer may not, in that situation, delay the return to work for 28 days. The employee can simply arrive at work and the employer is contractually obliged to resume payment of wages or salary.
If, having been informed of the date on which leave ends, the employee does not arrive on the next working day and does not explain the absence, the employer may treat the absence as unauthorised and implement internal disciplinary procedures. If the employee is sick on the return to work day, normal contractual notification rules must be followed.
Note that the requirement for the employer to provide the date on which leave ends and the requirement for the employee to give notice of an early return do not apply to paternity leave.
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