What control does an employer have over an employee's return to work date?

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Many employers arrange temporary cover for the absence of an employee during maternity or adoption leave. It can be difficult to manage the period for which a temporary worker is engaged where there is uncertainty over the date on which the absent employee will return to work. What control the employer does have over the situation can be jeopardised if the employer fails to meet the statutory notice requirements for maternity and adoption leave.

There are three distinct notice requirements - two that must be met by the employee and one by the employer. In the order they occur, we can call them (1) the "employee's initial notice", (2) the "employer's confirmation notice", and (3) the "employee's early return notice". There are also additional employee notice requirements for maternity and adoption pay purposes but only the notice requirements for maternity and adoption leave are discussed here.

Employee's initial notice

An employee must inform the employer, 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, this notice must be given in writing and the MATB1 or matching certificate must be provided.

The employee may subsequently give notice to vary the date from which the leave will start, doing so at least 28 days before the date that is being varied, or 28 days before the new date, whichever is the earlier, or as soon as is reasonably practicable.

Employer's confirmation notice

Within 28 days of receiving the employee's initial notice, the employer is required by law to inform the employee, in writing, of the date on which the 52-week period of maternity or adoption leave will end. 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 written confirmation notice can have serious implications, as will be seen.

The confirmation notice requirement is often met by giving the employee a detailed document that spells out all aspects of the employee's maternity/adoption leave and pay entitlements. However, the only statutory part of such a full 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, i.e. the first normal working day following the date on which leave ends.

Employee's early return notice

Having given initial notice to take leave and having received the employer's confirmation notice, the employee is entitled to take the full 52-week 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 52 weeks 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 52 weeks, there is nothing the employer can do about it.

There is no requirement for the employee to give notice to return to work after 52 weeks - only to turn up for work on the first working day after the end of leave. However, an employee wishing to return to work before the end of 52 weeks must give 8 weeks' notice of return, although the employer may choose to waive that requirement. The intention of the 8-week notice period is to give the employer sufficient time to bring the contract with the temporary worker to an end.

During maternity or adoption leave, the right of the employee to wages or salary under the employment contract is suspended. That right resumes automatically after 52 weeks' leave but, if the employee gives early return notice, it does not resume until the end of the 8-week notice period. As a result, if an employee wishes to return to work early, the employer is entitled to refuse permission to return until the 8 weeks is up. At the end of the 8 weeks, the employer is contractually obliged to resume payment of wages or salary. However, if the date on which the employee wishes to return is within 8 weeks of the end of the 52-week leave period, the employer may only delay the return until the end of the 52-week leave period.

If, having given 8 weeks' notice to return early, the employee wishes to make a further change to the agreed return-to-work date, the employee must give notice at least 8 weeks before the agreed date, or 8 weeks before the new date, whichever is the earlier.

However, failure by the employer to give written confirmation notice prevents the employer from enforcing the 8-week early return notice period. That 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 8 weeks. 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 give confirmation notice and the requirement for the employee to give early return do not apply to paternity leave.

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