If an employee resigns while on maternity leave, is she entitled to notice pay?
According to ss.87 and 88 of the Employment Rights Act 1996, if an employee resigns while on maternity leave, in certain circumstances the employer must pay the employee her normal full pay during the statutory notice period (which is one week for employees with continuous service of one month or more). The employer can offset the employee's maternity pay against her full pay. The employer does not have to make this payment until the employee's employment has ended.
However, s.87(4) provides that the employer's liability to pay the employee in full for the statutory notice period does not apply if the employee's contract requires the employer to give at least one week more than the statutory minimum notice to terminate the contract. Statutory minimum notice for the employer to terminate the contract is one week's notice where the employee has been employed for at least a month but less than two years, and then one week's notice for each year of service up to a maximum of 12 weeks' notice. The Employment Appeal Tribunal has acknowledged that the effect of this provision may seem odd, but nonetheless, in these circumstances, the employee is not entitled to full pay during the statutory notice period.
Therefore, where an employee who resigns while on maternity leave would be contractually entitled to at least one week more notice than the statutory minimum from her employer, she will be entitled only to maternity pay during her notice period, unless her maternity pay period has already expired, in which case she will not receive any pay.