Failure to return after maternity resulted in a fair dismissal

An office worker who lost her job after going on maternity leave for 28 months and refusing to return to work has lost an employment tribunal for unfair dismissal and discrimination.

The tribunal case centred two consecutive maternity absences and additional time off for family-related issues. Eventually, the employer asked the employee to provide a return to work date but the employee refused, stating that she would only be able to return once her divorce proceedings and house sale had concluded.

The employer was a small business with 21 staff and the tribunal heard that the employee’s protracted absence created operational difficulties. The situation was made more difficult as the employee had originally started her maternity leave four weeks early, following a disciplinary for inappropriate behaviour.

After the employee failed to provide a return to work date, her employment was terminated but claims for unfair dismissal, pregnancy discrimination and sex discrimination were dismissed by an employment tribunal.

The Tribunal found that the employee had been asked about her return to work and on eight separate occasions she stated that she was not able to return. She was then asked to put alternative suggestions to return to work, in writing. She failed to do this and was repeatedly asked to provide a reasonable time frame in which she would be able to return to work.  

The judge found, therefore that the reason for the dismissal was because the employee refused to return to work and the company could no longer keep her role open indefinitely.

This case demonstrates that when an employer behaves reasonably, providing opportunities for employees to respond to requests and documenting correspondence; a dismissal following lengthy absence can be conducted fairly.  Should you have any concerns about long term absence in your workplace, please contact us at

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