Where an employee fails to return from maternity leave on the expected date can the employer terminate their employment?
No. If an employer terminates an employee's employment, without further investigation, because they have 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 they are unable to attend work due to sickness, in which case the normal contractual arrangements for sickness absence will apply and the employee should notify their employer in the normal way. Alternatively, they might have decided that they do not wish to return to work at all after maternity leave, in which case they need to give their employer the notice of termination of employment required by the 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 their due date of return prior to starting their maternity leave, it might be that there is confusion on the employee's part about their due date of return. Employers are under a statutory obligation to respond in writing to an employee's notification of their maternity leave plans within 28 days, setting out the date on which their maternity leave will end if they take their full entitlement. If the employer did not give the employee this notification, it will not be able to penalise them (by dismissing them or subjecting them 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 they do not want to return to work yet, the employer can invoke the formal disciplinary procedure against the employee. Depending on the circumstances of the case, it might amount to potential gross misconduct enabling the employer to summarily dismiss the employee.