Where an employee fails to return from maternity leave on the expected date can the employer terminate her employment?

No. If an employer simply terminates an employee's employment because she has failed to return from maternity leave, this will be unfair dismissal and may also amount to sex discrimination or pregnancy and maternity discrimination.

The employer should start by making enquiries to find out why the employee has failed to return from maternity leave. It might be that she is unable to attend work due to sickness, in which case the normal contractual arrangements for sickness absence will apply and the employee should notify her employer in the normal way. Alternatively, she might have decided that she does not wish to return to work at all after her maternity leave, in which case she needs to give her employer the notice of termination of employment required by her contract of employment or, where there is none, the statutory notice period of one week. It is advisable in these circumstances for the employer to obtain any resignation in writing for the avoidance of doubt.

If the employer did not notify the employee in writing of her due date of return prior to starting her maternity leave, it might be that there is confusion on her part about her due date of return. Employers are under a statutory obligation to respond in writing to an employee's notification of her maternity leave plans within 28 days, setting out the date on which her maternity leave will end if she takes her full entitlement. If the employer did not give the employee this notification, it will not be able to penalise her (by dismissing her or subjecting her to any other detriment) for not returning to work on the expected date.

If it transpires after a full investigation that the employee is knowingly taking unauthorised absence because she does not want to return to work quite yet, the employer can then invoke the formal disciplinary procedure against the employee. Depending on the circumstances of the case, it might amount to potential gross misconduct enabling the employee to be summarily dismissed.