The answer to your question depends on whether you are paid contractual maternity pay above and beyond the statutory minimum or statutory maternity pay only. I first set out below the answer in the event that you are paid statutory maternity pay only.

SMP is payable at two different rates:

During the first six weeks of maternity leave, maternity pay is 90% of the employee’s normal weekly earnings.

For the remaining 33 weeks of statutory maternity leave, maternity pay is at the flat rate, which is currently £128.73 or 90% of the employee’s normal weekly earnings per week, if lower. 

I am assuming that you meet the qualifying conditions for receipt of SMP since you mention receiving maternity pay and you are on leave currently. If you resign during your maternity leave, this does not affect your entitlement to SMP from your former employer. The company will still be required to pay you your SMP. There is no requirement for you to have to repay any statutory maternity pay in the event that you resign from your employment during your maternity leave and/or a requirement for you to return to work for six weeks after the end of your maternity leave.

Whilst you will not have to pay SMP, if you are paid CMP, for example, if you are paid full pay for the first eight weeks of your maternity leave instead of 90%, your employer may have specified in the contract what requirements you need to fulfil in order to receive CMP and, equally, may set out whether you will be required to return to work for a set period at the end of the maternity leave in order to be entitled to CMP. Further, your employer may specify circumstances in which CMP will be recoverable.

I note that you say in your e-mail that there is nothing in your contract setting out the circumstances in which your employer can recover maternity pay. However, it may be that your employer has a separate contractual policy (this may even be referred to in your contract of employment) which sets out details in relation to this. If you are not aware of any such policy, you should contact your employer to ask them on what basis they are asserting that you need to repay your maternity pay unless you come back to work for at least six weeks. Depending on their response and whether there is a contractual right to recover CMP, you may have grounds to challenge the basis upon which they are indicating they will recover contractual maternity pay from you unless your return to work for the specified period.

In any event, even if they do have a contractual right to recover CMP from you, it is only the pay you receive in excess of your SMP that they are able to recover legitimately. They cannot recover SMP that you are eligible to receive, even if you resign during maternity leave. They also cannot force you to return even if they are entitled to recover CMP. It is entirely your decision as to whether you want to return from maternity leave.

One further point which is worth considering if the company starts being difficult and insisting that you repay your maternity pay or return to work at the end of your maternity leave, is whether there are any discrimination issues on the basis that you “associated” with a child with a disability. Under the Equality Act 2010 it is unlawful for an employer to discriminate against an employee because of their association with someone with a disability, for example, and as in your case, their child. However, this is a complex area of the law and in the first instance at least it is probably better to try to resolve this matter with your employer without raising the issue of disability discrimination.

Laura Livingstone is an employment lawyer for Davenport Lyons in London. Her practice focuses on contentious and non-contentious employment work, but she leans towards the non-contentious. She has advised a wide variety of corporate clients in all areas of employment. Charlotte Mepham helped in the preparatio of this answer.