An employee returning to work after additional maternity leave has the right to return to the job in which she was employed before her absence or, if it is not reasonably practicable for the employer to allow her to return to that job, to another job which is "both suitable for her and appropriate for her in the circumstances". The purpose of the right is to allow the returnee to come back to a work situation as near as possible to the one she left.
The claimant in Kelly v Secretary of State for Justice had been employed at a prison. She came back from maternity leave to find that the job which she had previously carried out, detailed in her job description as a "Healthcare Officer (Prison Mental Health Lead – Prison)", was no longer available, because the health services aspect had been outsourced to the NHS. The only post available to her was a job as an "ordinary" prison officer. She complained that this was a breach of her right to return.
The employee's job description made it clear that she was employed as a mental health nurse. There was a short passage at the end referring to “prison officer duties as directed” including “control prisoner movement”, but it was accepted that only 5% of her duties during more than 15 years' work at the prison had been as a regular prison officer.
The Tribunal dismissed the claim, concluding that, effectively, "once a prison officer, always a prison officer". The EAT allowed the appeal; the Tribunal should have asked:
- was the same job which she had done for 15 years still available to her on return from maternity leave? Answer: no.
- was the job offered of prison officer without any mental health or nursing involvement suitable and appropriate?
The second question could not be decided simply by reference to the job title; various factors would be relevant:
- The job did not involve nursing, which is what the claimant was qualified for and had done for 95% of her time during the previous 15 years. So it would be bound to affect her professional qualification as a nurse.
- She might have to work at weekends for the first time in 15 years.
- On the other side of the coin, she was well used to a prison environment and to coping with prisoners, much more so than a nurse brought in from the outside; plus she had spent 5% of her time as a prison officer.
- Her pay and benefits had been as a prison officer.
She had received annual training (and more was offered), so she would or could be qualified for the position. The EAT sent the case back to a fresh tribunal to decide these questions.