Background
In Blundell v Governing Body of St Andrew’s Catholic Primary School, the EAT has assessed an employee’s right to return to work following maternity leave to the ‘job in which she was employed before her absence’, as provided for by the Maternity and Parental Leave etc Regulations 1999 (the Regulations).
‘Job’ is defined in the Regulations as ‘the nature of the work she is employed to do in accordance with her contract and the capacity and place in which she was so employed’.
Facts
Mrs Blundell (B) was employed as a teacher by St Andrews School (the School). The practice at the School was to rotate a teacher’s class year every couple of years in order to broaden their teaching experience. The School’s headmistress usually asked teachers for their class year preferences for the following year, but there was no guarantee that a teacher would be allotted any expressed preference. B was teaching a reception class when she informed the headmistress that she was pregnant. The headmistress asked B whether she was willing to accept a floating role for the following year in order to avoid disruption when she went on maternity leave. Initially B agreed to this but subsequently changed her mind. The headmistress then ‘reluctantly’ reallocated B a reception class. B commenced maternity leave earlier than expected due to a pregnancy related illness. Due to her absence, B was not ask about her preferences for which class year she wished to teach the following year. Shortly before returning from maternity leave, B was presented with the option of teaching a Year Two class or taking a floating role.
B presented an employment tribunal complaint alleging that she had been subjected to a number of detriments on the grounds of her pregnancy and/or that she had taken maternity leave. The alleged detriments included: (1) the failure to ask her for her preferred class allocation for the following year; and (2) that by allocating her either a Year Two class, or the role of floating teacher, the School had failed to allow her to return to ‘the job in which she was employed before her absence’ which B argued was reception class teacher.
The employment tribunal found against B on all her claims. She appealed to the EAT.
EAT’s findings
The EAT upheld the employment tribunal’s decision on all but one ground. It found that the tribunal had applied the wrong test in determining whether the failure to ask B for her class year preference amounted to a detriment.
The EAT held that it was not the tribunal’s job to ‘speculate’ as to what the probability was that if B had been given the opportunity to request a specific class, she would have been given that class. Rather it should have considered whether, in not being asked for her preference, she had lost ‘something she might reasonably think was of value’, which, in this case, the EAT thought that she had. The EAT remitted this matter to the employment tribunal to decide on compensation.
In dismissing B’s appeal in relation to her ‘right to return to the same job’, the EAT made a number of helpful observations on the scope of this right. It held that the purpose of the legislation was protective and to ‘provide that a returnee comes back to a work situation as near as possible to that she left’ so as not to add additional burdens on a returning employee at a time she is also dealing with the demands of caring for a young child. The Regulations require employers to do more than simply honour the terms of an employee’s contract on her return to work.
However, the EAT found that where there is normally an element of variation in the employee’s role, a tribunal may have regard to the normal range of variation which has previously been exercised in deciding whether the employee had been allowed to return to her previous job. In B’s case, she was not entitled to insist on coming back to a reception class. It was the School’s normal custom to change a teacher’s class every couple of years.
Comment
Employers should be aware of the risks of introducing variations to an employee’s previous roles and duties on her return from maternity leave. The level of job specificity that an employee is entitled to insist upon is high, notwithstanding that an employee’s written contract might provides for such variation.
An employer will only be afforded latitude if the job was itself variable in nature, and there had in fact been a history of variation prior to the employee’s commencement of maternity leave.
Where the employee has taken additional maternity leave, the right is to return to the same job, unless it is not ‘reasonably practicable’ for the employer to permit her to do so. If this is the case, the employee is entitled to return to another job ‘which is both suitable for her and appropriate for her to do in the circumstances’.