Can an employer make informal enquiries of employees on maternity leave about whether or not they intend 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 employees while they are on maternity leave, to keep them informed of such matters as internal job vacancies, social events and pay reviews. 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 they feel that they are still an integral part of the business.
Where informal enquires are made of the employee about whether or not they intend to return to work, they are under no legal obligation to provide a reply if they do 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 their due date for return, they can simply report for work on the relevant date. If they intend returning early, they must give at least eight weeks' notice of the proposed early return date. If they do not wish to return at all, they must give the notice period of termination set out in their 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 the maternity leave period.