Precedent 4: Breach of the right to return following maternity leave, i.e. old job not returned following maternity leave ending

This precedent covers these issues:

• Refusal to allow return to old job after maternity leave.
• Failure to offer a suitable alternative.
• Failure to consult while on maternity leave.
• Redundancy pay.
• Notice pay.

Box 8.2 of tribunal claim form

1. I started work for the respondent pharmaceutical company in January 2012. I worked as an accounts assistant in the accounts department.
2. On 3 April 2019, I went onto statutory maternity leave. I was due back at work on 3 October 2019.
3. On 5 September 2019 I received a telephone call from my boss, Tim Neville, asking me to come in to discuss where I would be returning to work. I went in to see him on 9 September 2019. Sally Gooding from HR was also there.
4. Mr Neville said he was unable to offer me my job back because there had been a reorganisation. I said no one had talked to me about the reorganisation. I said, ‘If my job is not available, where are you going to put me?’  He said he was not sure and would need to think about it.
5. On 20 September 2019, Mr Neville telephoned me and offered me a job in the loading bay dealing with the paperwork when the deliveries come. I said that was not a skilled job and I did not want it. Mr Neville said unfortunately there was nothing else available.
6. On 27 September 2019, I received a letter from Mr Neville saying that, as I did not wish to accept the offer of the job in the loading bay and as there were no other suitable vacancies, my job would come to an end on the termination of my maternity leave.
7. I wrote a letter of appeal immediately and my appeal was heard on 1 October 2019 and rejected.
8. I believe my dismissal was related to the fact that I had taken maternity leave and was automatic unfair dismissal contrary to the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999.
9. Further, my dismissal was automatic unfair dismissal contrary to the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999, because my position was in reality redundant and I should have been offered any suitable available vacancy.
10. I was also subjected to the following detriments for reasons related to my maternity leave contrary to the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999: (i)   I was not consulted prior to or in connection with the reorganisation. (ii)   I did not retain my old job on the reorganisation. (iii)  I was not permitted to return to my old job. (iv)  I was not offered any suitable and appropriate alternative job.
11. I was also subjected to discrimination on grounds that I was taking or had taken maternity leave contrary to the Equality Act 2010 in that: (i)   I was not consulted prior to or in connection with the reorganisation. (ii)   I did not retain my old job on the reorganisation. (iii)  I was not permitted to return to my old job. (iv)  I was not offered any suitable and appropriate alternative job. (v)   I was dismissed.
12. I also believe my dismissal was unfair on ordinary principles under s98(4) of the Employment Rights Act 1996.
13. I am entitled to 7 weeks’ pay in lieu of notice.
14. Further or alternatively, my job was made redundant and I claim statutory redundancy pay.

Notes

Actions complained of

Always identify the actions complained of first. Here, these are:

•          Failure to consult in connection with the reorganisation.
•          Refusal to allow the claimant to return to her previous job.
•          Failure to offer a suitable and appropriate alternative.
•          Dismissal.
•          Notice pay.
•          Redundancy pay (if applicable).

It is very important not to miss tribunal time-limits. These can be complicated. You may find it helpful to see more information on discrimination time-limits.

Applicable law

After taking additional maternity leave under the Employment Rights Act 1996, a woman is entitled to return to the job she was employed in previously unless it is not reasonably practicable (for a reason other than redundancy) for the employer to allow her to do this. It is for the employer to show this and it would not be enough to say that someone else was now doing the job. If the employer can show it is not reasonably practicable to allow the woman to return to the same job, she must be given another job which is suitable for her and appropriate for her to do in the circumstances. The new job must be on terms and conditions (including pay) which are no less favourable than if she had been allowed to return to her old job.  If the reason the woman is not permitted to return to the same job is related to her maternity leave, this would be sex discrimination (even if it may be lawful under the Employment Rights Act 1996).

Here, it is not clear whether the reorganisation entails a redundancy situation.

If the claimant’s job is no longer available because of redundancy during maternity leave, she must be offered any suitable available vacancy. The claimant is unaware of any suitable vacancies, but she may just not have been told about them. She needs to keep both options open until she sees the vacancy lists.

Less favourable treatment of the claimant because she is or has been on maternity leave is unlawful under section 18 of the Equality Act in relation to:

• Failing to consult the claimant over the reorganisation.
• Failing to allow the claimant to return to her old job.
• Failing to offer the claimant a suitable and appropriate other job.
• Dismissing her.

Detrimental treatment (other than dismissal) for reasons related to the fact that the claimant took maternity leave is unlawful under section 47C of the Employment Rights Act 1996 together with regulation 19 of the Maternity and Parental Leave etc Regulations 1999.

Dismissal for reasons related to the fact that the claimant took maternity leave is automatic unfair dismissal under section 99 of the Employment Rights Act 1996 together with regulation 20 of the Maternity and Parental Leave etc Regulations 1999.

Failure to offer a suitable available vacancy where a woman is redundant while on maternity leave is automatically unfair dismissal under section 99 of the Employment Rights Act 1996 and regulations 10 and 20(1)(b) of the Maternity and Parental Leave etc Regulations 1999.

Unfair dismissal – if the claimant is an employee with at least two years’ service, she can claim ordinary unfair dismissal under section 98(4) of the Employment Rights Act 1996. For this, she does not need to prove the dismissal was in any way related to her maternity leave, but simply that it was unfair under the usual unfair dismissal rules. A redundancy dismissal can be unfair for any of these reasons: it was not a genuine redundancy; unfair selection; failure to consult; failure to consider or offer alternative employment.

If in reality, the claimant was dismissed for redundancy, she is entitled to redundancy pay if she has worked for the employer for at least two years.

The claimant is also entitled to notice.

You might find it helpful to use a table of legal rights often applicable in areas relevant to working families.

Comments on the claim drafted above

Paragraphs 1 – 7 contain the facts; paragraphs 8 – 14 set out the law.

The legal definition of redundancy can be difficult to apply. In many cases, the disappearance of the claimant’s previous job on a reorganisation will amount to a redundancy situation. It is therefore best to write the claim covering both possibilities. The wording ‘further or alternatively’ is used in paragraph 14 because the situation might or might not have been a redundancy situation.

Paragraph 9 – If the claimant’s position was redundant, she was entitled to be offered any suitable available vacancy. She is unaware at this stage whether there were any such vacancies. During the case preparation, she can seek disclosure of the vacancy lists which will show whether this should be part of her claim. See precedent 3 for an example where the claimant was already aware of a suitable vacancy which she should have been offered.

Paragraph 12: The claim mentions ‘s98(4)’ just to make it clear it is talking about ordinary unfair dismissal here rather than any kind of automatic unfair dismissal.

Paragraph 13: Always check if correct notice has been given or paid in lieu. If not, make a claim. If you like, you can add that ‘Failure to give me notice was breach of contract.’ Boxes 6.3 and 8.1 on the tribunal Claim form also ask you to indicate whether notice is claimed.

Except as explained, the above precedent does not cite the precise sections applicable to most of the claims. This is because the law is particularly difficult in this area and if you leave something out or get a section number wrong, it may cause problems later.

Variations

Discriminatory appeal decision: in some cases, something happens at the appeal hearing which suggests the decision to reject the appeal was also based on the fact that the claimant had taken maternity leave, eg an adverse comment is made at the appeal hearing. If so, the claimant can add as 11(vi) ‘My appeal was rejected’.  In most cases, however, the decision to reject the appeal is routine and based on other considerations.

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

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