Maternity Leave: Returning to the Same Job
Kelly v Secretary of State for Justice is a
recent Employment Appeal case which has provided some clarification on the
rights of women on maternity leave who return to the workplace.
In this case Ms Kelly worked as a Healthcare
Officer in a prison and had done so for 15 years. Her contract of employment
stated she was a ‘prison officer’. Ms Kelly went on maternity leave and when
she returned to work the healthcare work had been outsourced and the only job
available to her was as a prison officer.
She claimed Regulation 18 of the Maternity and
Parental Leave Regulations 1999 had been breached. This regulation states that
a woman who goes on maternity leave is entitled to return to the same job. She
claimed that she only spent 5% of her time in 15 years working as a prison
officer. She lost at Tribunal and brought an appeal. The Tribunal had stated
her contractual position was a prison officer therefore it was suitable for her
to return to it.
The EAT (Employment Appeal Tribunal) allowed
her appeal and stated the Tribunal made a mistake by stating that because her
employment contract described her as a prison officer, it must be suitable and appropriate
for her to return to this position after her maternity leave. The EAT stated
there were other matters which the Tribunal should have addressed first, such
as the matter of her nurse training, the changes that would take place to her
work patterns and the actual work she completed. It was premature of the
Tribunal just to look at the employment contract.
The case has been sent back to the Tribunal to
be reheard.
If you have any questions about Maternity
Leave or want to know whether the Maternity arrangements you operate in your
business are compliant with the law, don’t hesitate to get in touch.
Gamlins are Employment Law specialists based
in North Wales with a wealth of experience advising employees and businesses
across the region.
Elissa Thursfield elissa.thursfield@gamlins.co.uk
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