A woman returning to work from Ordinary Maternity Leave is entitled to return to the “job in which she was employed before her absence” and when returning from Additional Maternity Leave to the “job in which she was employed before her absence or, if it is not reasonably practicable …, to another job which is both suitable for her and appropriate…”. Although these provisions have been in place for some time, the EAT has considered, for the first time, what the “job in which she was employed before her absence” actually means.
In the case of Blundell v Governing Body of St Andrew’s Catholic Primary School, Mrs Blundell was employed as a primary school teacher. At the time she went on maternity leave Mrs Blundell was in her second year of teaching the reception class. Teachers were generally rotated by the head teacher every two years to broaden their experience. The head teacher would ask staff to express a preference for roles for the following academic year, although there was no guarantee that the preference would be accommodated. Upon her return from maternity leave Mrs Blundell was assigned to teach Year 2.
Mrs Blundell claimed that in allocating her the role of Year 2 teacher on her return from maternity leave her employer had failed to allow her to return to the “job in which she was employed before her absence”. She argued that her job was the job of reception class teacher.
The EAT confirmed that the purpose of the relevant legislation was to “provide that a returnee comes back to a work situation as near as possible to that she left”. Where the employee’s role is variable, the tribunal may have regard to the normal range within which variation has previously occurred. In this particular case, Mrs Blundell could not insist on coming back to teach the same year group, since the school customarily required teachers to change year groups every two years. Accordingly, the employee had not been prevented from returning to the same job. However, there was a finding that she had been subjected to a detriment because she had not been consulted over which year group she would be assigned to teach, which she would have been if she had not been absent on maternity leave.
For the first time, we now have some judicial guidance on the scope of the phrase “the job in which she was employed before her absence”. Where the employee’s role is variable, the tribunal need not “freeze time” at the moment she takes maternity leave, but may “have regard to the normal range within which variation has previously occurred”.
This case also serves as a reminder to ensure that when carrying out staff consultations over job role developments, employers must consult with any employees on maternity leave. The recent changes to the maternity regulations, make it clear that employers may make reasonable contact with the employee (and vice-versa) while she’s on maternity leave, to discuss a range of issues, such as, to discuss her plans for returning to work, or to keep her informed of important developments at the workplace.
Remember, employees on maternity leave should also be informed of any relevant promotion opportunities or job vacancies that arise during maternity leave.