Teacher coming back early from maternity leave: what are my rights?

I am employed as a teacher on a maternity cover contract till 30th April 2017. I have just been told the person I am covering wants to come back two months early. What are my rights with regard to compensation if I am asked to vacate my role so that the original teacher can resume her duties?

I note that you are a teacher on maternity cover and that the individual who had been on maternity leave is due to return 2 months earlier than expected and you wish to know what your rights are.

Generally speaking, the returning employee has the right to return to the same job that she was employed to do before going on maternity leave. Consequently, fixed-term contracts are often used by employers to provide cover.

I would first of all advise you to carefully review your contract of employment to see if there is a clause that allows your employer to terminate your fixed-term contract early on giving you a specified period of notice and/or when the individual on maternity leave returns. If your contract does not contain any such clauses then you will have stronger grounds to argue that you should be paid for the 2 months you should have worked or else your employer would risk breaching the terms of your contract.

If there is such a clause then the employer will be able to rely on this as a potentially fair reason to dismiss you for “some other substantial reason” and it would not be in breach of your contract of employment if it relies on this clause to terminate your contract, provided it complies with any applicable notice requirements. There is a special provision under s.106 of the Employment Rights Act 1996 which will help the employer’s case here, providing that:

  • they informed you in writing at the time of recruitment that your employment will be terminated when the employee who is absent because of childbirth returns to work; and
  • the dismissal is to enable the absent person on maternity leave to be given the work.

While this provides your employer with a potentially fair reason for dismissal, it will still need to show that it has acted reasonably under the circumstances. As you do not have two years’ service you cannot claim unfair dismissal. However, your employer is still likely to want to show that there were no other reasons that led to your dismissal which would give you a potential claim for discrimination, where there is no minimum service requirement to bring a claim in the employment tribunal.

Should you require any further clarification on the above points then please do not hesitate to contact Tracey Guest of Slater Heelis on 0161 672 1246.

*Helen Frankland assisted in answering this question.

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