Return to work and job has changed: ask the expert

If an employee takes only 26 weeks (Ordinary Maternity Leave) or less, she will be entitled to return to the same job as  she was employed to do before her absence. Her terms of employment must be the same as, or not less favourable than, they would have been had she not been absent, unless a redundancy situation has arisen. She will be entitled to benefit from any improvements as if she had not been away, such as a pay rise or any other changes to her terms and conditions for her grade or level.

However, you have taken leave in excess of 26 weeks (i.e. Additional Maternity Leave, or AML) and the rules do differ slightly. You are generally entitled to return to work to the same job on the same terms and conditions as if you had not been absent (regulation 18(2), MPL Regulations). However if there is some reason (other than redundancy) why it is not reasonably practicable for the employer to permit you to return to the same job (for example, if there has been a reorganisation), the employer has more flexibility. It is worth noting in this case that the employer cannot argue that a redundancy situation has arisen due to the fact that the job is still being carried out by someone else.

The purpose of regulation 18 is to “provide that a returnee comes back to a work situation as near as possible to that which she left”. The “job” is defined for these purposes as “the nature of the work which she is employed to do in accordance with her contract and the capacity and place in which she is so employed.” The nature of the work will usually be determined by the contract (including any job description), but the “capacity” and “place” will be questions of fact for an employment tribunal. If the tasks or role carried out by you are variable, the tribunal need not “freeze” that role at the moment you commenced leave, but may have regard to the normal range within which variation has previously occurred. For example, it was held that a teacher could be required to teach any class on return from maternity leave not simply the class she was teaching when she went on maternity leave. The question was whether her job, on return, was “outside the normal range of variability which the employee could reasonably have expected”.

You therefore need to consider how different from your previous role your current role is, and the reasons given by the employer for being unable to allow you to return to the same job. If there is no good reason, you can potentially bring a claim against your employer.

If you have not been permitted to return to the same job on no less favourable terms and conditions, or where it is not reasonably practicable to permit you to return the same job after AML, if the employer has not offered you a suitable alternative job, the employer will be at risk of a claim of maternity discrimination and automatic constructive unfair dismissal.

With reference to the fact that your replacement has been kept on, there is a great deal of case law dealing with this point. An employer has a statutory obligation to allow the returner to return to her old job and this must override any assumed obligation to her replacement.

In conclusion, unless it was not practicable to allow you to return to the same role, you have potential claims for maternity discrimination and automatically unfair constructive dismissal. However, it may be the case that the employer is able to successfully argue that the reason for it not being practicable is because the role requires one full-time employee. However, this would depend upon the nature of the job. It is difficult to think of examples whereby this would be absolutely necessary.

At this stage, I would advise you to lodge a formal grievance in writing to the Company and specifically state why you believe you have not returned to the same role or to a suitable alternative.

Whilst every care has been taken in compiling this answer, WorkingMums cannot be held responsible for any errors or omissions. This information is not intended to be a substitute for specific legal advice.

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