Is there anything to prevent an employer making informal enquiries of an employee on maternity leave about whether or not she intends to return to work?
An employer can make informal enquiries about whether or not an employee intends to return from maternity leave, provided that they are not made in such a way that they could be construed as either harassment or a breach of the implied term of mutual trust and confidence. This means that the enquiries should be polite and non-threatening. In addition, they should not be repetitive. Ultimatums or deadlines for reply should not be issued.
Employers should, in any event, maintain some level of contact with an employee while she is on maternity leave, so that she can be kept informed of such matters as internal job vacancies, social events and pay reviews, and the Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312) make specific allowance for "reasonable contact". Maintaining such contact will assist the employer in making informal enquiries about the employee's intentions and the employee may be more receptive to replying if she feels that she is still an integral part of the business.
Where informal enquires are made of the employee about whether or not she intends to return to work, she is under no legal obligation to provide a reply if she does not wish to do so. If the employee fails to reply or gives an evasive or non-committal answer, there is little that the employer can do. If the employee intends to return to work on her due date for return, she can simply report for work on the relevant date. If she intends returning early, she must give at least eight weeks' notice of her proposed early return date. If she does not wish to return at all, she must give the notice period of termination set out in her contract. The employer can remind the employee of the notice periods required for either coming back early or not coming back at all, but it has no statutory right to request formal confirmation that the employee will be returning to work at the end of her maternity leave period.