Maternity leave, right to return arrangements

Case ref: 1.4/March 2004

Summary of case

Member went on maternity leave in September 2002. Despite her protests before she commenced her Maternity Leave, her job was advertised on a permanent basis. Following her return the member accepted a position on the same terms and conditions and grade.

However, the member was concerned that the position did not allow her an opportunity to deploy the skills she had acquired. There was also less managerial responsibility.

Furthermore, redeployment to this position harmed her chances of competing for promotion within the field she had specialised in prior to going on maternity leave.

Advice requested

What prospects would the member have of pursuing claim under the Sex Discrimination Act?

Key advice provided by Thompsons

The advice letter received from Thompsons provided guidance on implementation of the relevant sections of the Maternity and Parental Leave etc Regulations 1999. The key extract said:- 

"An employee's right to return following maternity leave is governed by regulations 18 and 18A of the Maternity and Parental Leave etc Regulations 1999 (MPLR). An employee returning to work after ordinary maternity leave (OML) is entitled to return to the job in which she was employed before her absence. "Job" means "the nature of the work which she is employed to do in accordance with her contract in the capacity and place which she is so employed" - Regulation 2 (1).

"It is therefore important to establish exactly what job the member was contractually required to do. For example, somebody employed as a general clerk, could not insist that they return to a job as a clerk/typist in the wages office, on their return from maternity leave. Another employment tribunal has found that, in relation to a part time audio typist working in a surveying department in a firm of estate agents, the employer was entitled to ask her to return to work in the estate agents department, following her maternity leave. It is trite law that to the extent that the Department's rules detract from the rights of employees under the MPLR, they are unlawful, and the Regulations prevail." 

In the particular case in question the solicitor required further information from the Bargaining Unit in order to reach a final view on the likely prospects of success.

Legal department comment

Clearly each of these types of cases needs to be considered on their own merit. However, the advice provided by Thompsons provides some clues as to how the law applies and impacts in this area. Officials may also want to consider seeking advice from the PCS Equality and/or Policy and Research departments before seeking legal advice on any particular case.

Updated 29 Jan 2017

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