'(2) An employee who returns to work ... is entitled to return from leave to the job in which she was employed before her absence, or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances'.
Regulation 2(1) provides:
'"Job" in relation to an employee returning after ... maternity leave ... means 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 claimant was a teacher at the first respondent school. In the school year 2002 to 2003 she was given the responsibility of being a teacher for the yellow reception class. In June 2003, she told the second respondent, who was the head teacher, that she was pregnant.
The head teacher's standard practice towards the end of the school year was to ask each teacher what their preferences were on class allocation for the coming academic year. She usually tried to keep each teacher in a particular role for two years. Having been told of the impending maternity leave, the head teacher asked the claimant if she would undertake “floating duties” in the following year.
The claimant originally agreed, however, the next day told the head teacher that she did not wish to have a “floating role”. The head teacher then told the claimant that she had decided, reluctantly due to her concern about the disruption to the children, to allow the claimant to teach reception yellow again.
Subsequently, on the 5th of December, before the end of the school term, the claimant took sick leave because she was suffering from a pregnancy related condition. She then had her baby in January 2004. She was not due to return to work until the start of the autumn term and the head teacher did not ask her for her preference as to class allocation in June 2004.
Shortly before her return to work the head teacher offered her the option of a “floating role” or class teacher of class two. The claimant opted for the latter, although she had never taught year two previously and, on her case, year two involved heavy responsibility.
The claimant subsequently presented a claim for sex discrimination in the employment tribunal, complaining that she had suffered a number of detriments by reason of her pregnancy. The tribunal dismissed the claim and so the claimant appealed to the Employment Appeals Tribunal.
On appeal, an issue arose as to the meaning of “job” in the phrase ”the job in which she was employed before her absence” in regulation 18(2) of the Regulations.
The appeal tribunal held as follows:
The aim of the Regulations was to provide that a returnee came back to a work situation as near as possible to that she left. The purpose of the Regulations was continuity, preferably avoiding dislocation. The contract was not definitive. The phrase “in accordance with her contract” qualified only the 'nature' of the work. The tribunal felt that capacity was more than 'status', although might encompass it. It was deemed a factual label and so was descriptive of the function which the employee served in doing work of the nature she did. The fact that it was a factual label, and so not determined purely by the contract, was most readily demonstrated by considering the word 'place', which was also not purely contractual.
The level of specificity with which the three matters 'nature', 'capacity' and 'place' were to be addressed was critical and the central question was how the level of specificity should be determined and by whom.
The question was essentially one of factual determination and judgment and hence for the tribunal at first instance.
In approaching the question, the tribunal had to have in mind both the purposes of the legislation and the fact that the Regulations themselves provided for exceptional cases. These exceptional cases being where it was not reasonably practicable for the employer to permit her to return to her previous job, the employer might provide for her return to another job which was both suitable for her and appropriate for her to do in the circumstances.
The legislation sought to ensure that there was as little dislocation as reasonably possible in her working life, and given that the purpose of the legislation was to protect the employee there was no need to construe 'the same job' as covering a broad spectrum of work in order to ensure an appropriate balance between employer and employee.
The term “Job” could be quite specifically defined. Leeway was provided by an employer being able to provide a job which was not the same job, but was still suitable. Where a precise position was variable, a tribunal was not obliged to freeze time at the precise moment its occupant took maternity leave, but might have regard to the normal range within which variation had previously occurred.
In this case, the tribunal had given the right answer on the findings of fact it had made.
Throughout its decision was the theme that the claimant could be required to teach any class as asked by her head, and that was a real, not simply a theoretical requirement deriving from the contract alone.
§ The nature of her work, according to her contract, was as a teacher.
§ Her capacity, as a matter of fact, was viewed more realistically as a class teacher than as a teacher of reception yellow.
§ The place of work could not be said to be the reception classroom, but the school.
The post the claimant returned to was the same post, if the level of specificity was properly to be regarded as 'teacher'. If it was temporarily more specific, because the precise post varied, the question was whether the job on return fell outside the boundary of what was permissible. It was clear that the tribunal found that it was not outside the normal range of variability which the claimant could have expected.
It was therefore held that the appeal would be dismissed on all grounds save that in relation to the failure to ask the claimant in June 2004 to state a preference as to the class she wished to take in the following year.
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© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.