Mums returning to work after maternity leave have the right to return to the same job – but what does that mean in practice?
The Employment Appeal Tribunal has handed down a judgment which explains the criteria that should be used.
Mrs Blundell worked as a teacher at St Andrew’s Catholic Primary School. It was usual practice for the teachers to change classes after two years to give them breadth of experience.
When Mrs Blundell left to go on maternity leave, she was teaching a reception class, when she returned she was allocated a year two class. She argue that this was not the same job.
The Employment Appeal Tribunal ruled that under the Maternity and Parental Leave Regulations 1999, employers must consider three things when considering the role a woman returns to after maternity leave:
- Nature
- Capacity
- Place.
The nature of the work is provided for by the contract, capacity describes the function the employee serves, place covers where the she works. Mr Justice Langstaff said these were matters of fact to be determined by tribunals as both capacity and place could be more than merely contractual.
He explained: “The Regulations aim, as we see it, to provide that a returnee comes back to a work situation as near as possible to that she left. Continuity, avoiding dislocation, is the aim.”
As the regulations do not specify place or capacity in accordance with the woman’s contract, the EAT’s analysis indicates that working solely through the contract might be detrimental.
For instance, although a contract might have a mobility clause which allows the company to move the woman to a different office, she would “suffer the dislocation and unsettling need to familiarise herself with that workplace at a time when she was vulnerable, and still learning to accommodate the needs of her newborn alongside those of work”.
How specific the return to the place and capacity of work must be will depend on the circumstances of each case.
Mr Justice Langstaff explained: “Does the secretary to the boss return to the job she did before maternity leave if she returns to the typing pool? At one level, the work is secretarial; the capacity is as a secretary. At another, it is more specific: personal secretary to the boss.”
In Mrs Blundell’s case, the EAT supported the tribunal’s reasoning that she was a teacher and had returned to work in the same school as a teacher. Therefore, there was no discrimination on the grounds of pregnancy. As teachers were regularly moved from class to class, there was no specific job of ‘reception teacher’.
Where it did find against the school was that the other teachers were asked to state preferences about which class they would like to teach the following academic year, whereas Mrs Blundell had not because she was on maternity leave. This was considered to be a difference in treatment on the grounds of pregnancy.
