The suitability of a new role for a maternity returner

Health iStock 000005083391XSmall 146x219The issue of what role an employer can require a maternity returner to do is a complex one. Phil Allen considers a recent Employment Appeal Tribunal judgment.

In a fast-moving world it can sometimes be hard to identify the job that a maternity-returner should come back to. In its judgment in the case of Kelly v Secretary of State for Justice, the Employment Appeal Tribunal has highlighted that an employer cannot simply rely upon the employee’s contract and job title in identifying what is a suitable and alternative job for them on their return from Additional Maternity Leave.

It has emphasised that all the material factors must be considered when identifying if a job is suitable and alternative – meaning it is a difficult decision which you must carefully think through.

The detail

Ms Kelly was employed, according to her contract, as a prison officer. She had worked in a prison for 15 years and had kept up her training to enable her to carry out normal prison officer duties. However in practice she had only spent 5% of her working time being a prison officer. Most of her working time had been spent fulfilling what her job description described as being a Healthcare Officer at the prison, utilising her training and skills as a qualified nurse.

Whilst Ms Kelly was on maternity leave, the health aspects of the prison environment were outsourced, so when she came back it wasn’t practicable for her to return to exactly the same job. However where an employee has taken Additional Maternity Leave and this is not possible, the Maternity and Parental Leave Regulations enable the employer to return the employee to another job which is both suitable for her and appropriate for her in the circumstances.

The employer said that as Ms Kelly was contracted to be a prison officer and was paid the rate for that job, returning her to a normal prison officer job must be suitable and appropriate. Ms Kelly disagreed and argued they had failed to comply with their obligation under the Regulations.

Whilst the Employment Tribunal concluded that because her contractual position was that of a prison officer that must be a suitable and alternative role for her, the Employment Appeal Tribunal has overturned that finding and sent the case back for a new tribunal to decide.

The EAT emphasises that it is a far more complex question than that, requiring consideration of all the circumstances. In this case the ultimate consideration of it must include: that the job involved no nursing, which is a big change for someone who was a professionally qualified nurse who had spent 95% of her working time doing nursing for the previous 15 years; and that being an ordinary prison officer would require Ms Kelly to work weekends, when she had not done so previously. However the fact she had been paid as a prison officer, working in a prison, and receiving regular training as a prison officer, were also all factors to be balanced in the decision required.

What does this mean for me?

Where things have changed, it can sometimes be difficult to know exactly what you can require a maternity-returner to do. The starting point is that they must return to the same job. However if they have taken AML and that is no longer practicable, you can return them to a suitable alternative role but how hard a line can you take?

That will depend upon a careful analysis of the circumstances. This judgment is very clear in determining that contracts and job titles alone are not enough, what is required is a more careful consideration of all the issues around the alternative role and its impact upon the returner. Whilst emphasising the need to tread with care however, the judgment does not say employers must always accept all objections from an employee to a different role, just that a careful consideration of all the facts needs to be undertaken before you insist that the role is suitable and appropriate for that returner.

Comment

The workplace can change during a period of maternity leave (or adoption leave or additional paternity leave). We are often asked to advise on redundancy arising whilst someone is on maternity leave and the difficulties which arise from the priority right that someone on maternity leave has to an alternative role where they are displaced as a result of redundancy.

It may be that the background to this case was a wish to avoid an expensive redundancy payment when finances were constrained. If faced with a similar situation, it is worth considering whether an employee can be returned to an alternative role. However when you do, carefully consider and take advice on all the factors around the alternative role. There will be circumstances in which you can genuinely argue that it is an alternative role which you can require the maternity returner to undertake, but getting it wrong could be expensive and damaging for the reputation of your organisation.

Phil Allen is a Partner at Weightmans. He can be contacted on 0161 214 0504 or This email address is being protected from spambots. You need JavaScript enabled to view it.