QOTW: Maternity leave and furlough

The question this week: can I end my employee’s maternity leave early and put them on furlough?

Our employment & HR experts explore if you can end an employee’s maternity leave early and put them on furlough?

Answer

If your employee wants to end their maternity leave early to enable them to be furloughed with your agreement, they need to give you at least 8 weeks’ notice of their return to work. You can however agree to a shorter period of notice (or no notice) if you want to. You won’t be able to place them on furlough until the end of the notice period/ the agreed date to return to work.

Employers should only place employees on furlough if their operations have been impacted by COVID-19. The scheme shouldn’t be used purely as a way for those on maternity leave to benefit from greater pay. However, employers who are struggling to maintain their workforce and/or have had their employment activities been adversely affected by coronavirus can furlough employees who are unable to work (or can only work reduced hours) because of childcare responsibilities resulting from coronavirus. For women returning from maternity leave, that might include closure of schools and childcare facilities.

Advantages to ending maternity leave early and furloughing employee

  • Your employee may benefit from greater pay if they are otherwise only receiving SMP (or no maternity pay) – furlough pay would be based on 80% (up to £2,500) of her normal pay which is likely to be better than SMP after the first 6 weeks
  • You would have an additional resource available if government guidance is lifted partially/wholly, assuming your employee has no childcare issues
  • You could potentially save on pension contributions depending on the specifics of your scheme

 

Disdvantages to ending maternity leave early and furloughing employee

  • For your employee, there is a greater possibility that she may be brought back from furlough early if you require her to work
  • For your employee, they would no longer benefit from added protection as an employee on maternity leave (notably, in a redundancy situation those on maternity leave must be given priority for suitable alternative vacancies)
  • You would pay greater NI contributions on furlough pay in comparison to SMP
  • There is a moral dilemma for you as an employer as it seems to go against the purpose of the scheme in assisting those impacted by coronavirus. Your employee hasn’t currently been affected by coronavirus because she would otherwise be on maternity leave

 

How to approach the conversation

If your employee has raised the issue of an early return from maternity leave and asked to be furloughed, you should carefully consider whether:

  1. your business is struggling to maintain its workforce and/or your employment activities have been adversely affected by COVID-19. If you are already using the scheme that is likely to be an easy question to answer.
  2. it is appropriate under the rules to furlough the employee in question – e.g. is there not enough work for them to so and/or do they have childcare issues?
  3. it might be appropriate to explain the potential implications to the employee, or at least ensure they understand that they will be ending their status as someone on maternity leave and as such could be required to return to work when notified to do so by the employer.

 

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