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An employee returning from maternity leave is generally entitled to return to the job in which she was employed before taking maternity leave (“the same job”)(Maternity and Parental Leave Regulations 1999 (“the Regulations”)) unless she has taken more than 6 months’ maternity leave, in which case, if it is not reasonably practicable for the employer to permit this, then she must return to another job which is both suitable for her and appropriate in the circumstances.
In Blundell v Stockton on Tees Borough Council, the Employment Appeal Tribunal (EAT) has, for the first time, considered the meaning of the “same job” in this context.
Background
Mrs Blundell was one of eighteen teachers teaching at St Andrews Primary School and, in the school year 2002/2003, she was allocated to teach Reception Yellow. In June of that school year she told the head teacher, Mrs Assid, that she was pregnant.
Mrs Assid’s normal practice was to ask teachers towards the end of the school year what their preferences were for class allocation for the following academic year. However, it was also her practice she tried to keep a teacher in a particular role (such as Reception Class teacher) for 2 years before moving them and there was no guarantee that they would be offered their preferred choice.
Mrs Blundell had her baby in January 2004 but was not due to return to work until the start of the autumn term. As usual, at the end of the school year, Mrs Assid asked all the members of staff who were then employed by the school for their preferences as to class allocation for the forthcoming year. However, because Mrs Blundell remained absent on maternity leave, Mrs Assid did not ask her for her preference.
Shortly before Mrs Blundell returned to work, she met with Mrs Assid to discuss the specific duties she was to perform as teacher during the following year. Mrs Assid offered her two options: she could either take up a floating role, or she could become class teacher of year two. Mrs Blundell opted for the latter.
Claims and Decision
Mrs Blundell complained that (1) the failure on the part of Mrs Assid to ask her for her preference as to class allocation for the forthcoming year subjected her to a detriment under Sex Discrimination Act 1975 and (2) the failure of the school to allow her to return to the job in which she was employed before she went on maternity leave, (that of a teacher of Reception Yellow) was in breach of her legal entitlement under the Regulations to return to the “same job”.
With respect to the first complaint, the EAT overturned the Tribunal’s original decision that, because there was no guarantee that expressing a preference as to class allocation would have led to her teaching the class of her choice, it was not to Mrs Blundell’s detriment to be denied such an opportunity. Instead, the EAT stated that the right approach was to assess whether Mrs Blundell had lost something that she might reasonably think of value. In this instance the answer was unequivocally “yes” as she had lost the chance of putting forward her choice and thereby the opportunity of securing her first or even second preference class allocation. The EAT therefore found that, in this respect, Mrs Blundell was discriminated against on the grounds of her sex.
With respect to the second complaint, the EAT held that, in trying to establish the job the employee held prior to the commencement of maternity leave, the job description and/or terms and conditions of employment set out in an employment contract are not definitive. Whilst the “nature of work” carried out by the employee is defined by the contract, the “capacity“ and “place” in which they do it are not and, as such, are factual labels describing the function in which the employee serves in doing work of the nature that she does.
The EAT considered that the aim of the Regulations is to provide that a returnee comes back to a work situation as near as possible to that which she left. Where the precise position is variable (i.e. teacher of any class rather than teacher of a specific class) the Tribunal is not obliged to “freeze time” at the precise moment a woman takes maternity leave but can have regard to the normal range within which variation has previously occurred. In this instance therefore, Mrs Blundell had been returned to the “same job”, that of a teacher.
Conclusion
Although this decision is important in that it provides assistance as to the meaning of the “same job”, it does little to assist employers other than suggest that the level of “specificity” that should be applied is a matter of factual determination. However, what is clear from the judgment is that, if the “capacity” in which an employee worked before taking maternity leave was variable then, as long as the job to which the individual returns is within the normal range of variability which she could reasonably have expected, then there will be no cause for complaint.
Employers are advised to bear in mind that women returning to work from maternity leave have to re-familiarise themselves with the workplace at a time when they are still learning to accommodate the needs of their expanded family. A smooth return to work is much more likely if “returnees” consider that their employer is sensitive to their vulnerabilities. Good communication with employees, both before and during absence on maternity leave, is essential to this, as has been recognised with the recent introduction of “keeping in touch days” (where a woman can work, and be paid, for up to 10 days during her maternity leave without brining it to an end or losing her entitlement to statutory maternity pay), and the giving of permission to employers to make “reasonable contact” with employees on maternity leave.
In any event, employers should ensure that employees on maternity leave are kept informed of any issues which may affect the job to which they will return and are treated in the same way as those that are physically present in the work place with respect to any decisions or opportunities that may affect their position.
Lou Marshall
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Simkins' early warning bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.
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