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The Return of an Employee from Maternity LeaveBack

“We have a lady on maternity leave who is due to return to work shortly.  We replaced her with a full-time employee and now her original position has been swallowed up.  Initially we were thinking she could come back to the same role however another role has potentially arisen in one of our other dealerships.  There is no mobility clause in her contract however can we offer her the alternative role?  If she says no to the relocation would that mean she is effectively resigning from her role?”

Care should always be taken with employees returning from maternity leave because of the risks of both maternity discrimination and sex discrimination.  Employees who take maternity leave are entitled to return to the same position however when they are in the additional maternity leave period (i.e. the last six months of their maternity leave) they are still entitled to return to the same position, unless that is not reasonably practicable for them to return to the same job.  If that is the case they are entitled to return to a different job which is both suitable for them, appropriate in the circumstances and, on terms and conditions not less favourable than they would have been had she not been absent.

Turning to look at whether it is not reasonably practicable, there is no strict legal meaning but case law provides examples.  For example a whole department moving to another site and therefore the work not being available would likely qualify.  On the other hand, an employer who hires a temporary worker who was so good they were then made permanent, and sought to move the incumbent employee on her return, was not deemed to be reasonably practicable.

Ordinarily therefore if her original role is available she should be put back into that.  You can consult with her and see if she would be agreeable to relocating and then move her if she agrees.  If, however the original role is not available the question is whether the alternative role is suitable for her and on not less favourable terms

In summary therefore a genuine business reorganisation might suffice but a simple preference for someone else to perform the role would not.  In those circumstances if she is not agreeable to the move therefore there could be a risk of discrimination.  If she refuses equally it would not mean she has returned and the company would either have to put her back into the original role or, force the move and risk both a breach of contract and potential discrimination situation.

Andrew Macmillan

Solicitor

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.

 

Posted by Sue Robinson on 09/06/2017