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Returning to work
[ch 8: pages 237-238]An employer cannot refuse to let an employee return to work early (i.e. before the statutory end date of their leave), as long as that employee has given at least eight weeks’ written notice of their early return. The right to return to your original job depends on the type of leave you have taken, as follows:
Returning after ordinary maternity, adoption leave and additional paternity leave: A woman who returns from ordinary maternity or adoption leave (i.e. within the first six months of leave) and a man who returns from additional paternity leave (for babies matched or born before 5 April 2015) is entitled to return to the same job they were employed to do before the absence. This right to return is unaffected by adding on up to four weeks of unpaid parental leave (see page 242).
The “same job” means the job the woman was employed to do in accordance with her contract:
In Blundell v Governing Body of St Andrew’s Catholic Primary School [2007] IRLR 652, the EAT said a primary school teacher did not have the right to return to teaching the reception class because under her contract she could be required to teach any year group of children.
Blundell v Governing Body of St Andrew’s Catholic Primary School [2007] IRLR 652
www.bailii.org/uk/cases/UKEAT/2007/0329_06_1005.html
In Kelly v Secretary of State for Justice [2013] UKEAT/0227/13/JQJ, the EAT confirmed that the job to be returned to should be the one the employee was actually required to perform under her contract before she went on maternity leave, which will very often be different from the job she was originally recruited to perform. It is not enough just to look at the job title. In this case Kelly’s job title was “prison officer”, but she had worked for 15 years as a prison service Health Care Officer before going on maternity leave, so that was the job she was entitled to return to.
Kelly v Secretary of State for Justice [2013] UKEAT/0227/13/JQJ
Returning after additional maternity or adoption leave: Someone returning from additional maternity or additional adoption leave has less comprehensive rights. They have the right to return to the same job, but if that is not reasonably practicable, they have the right to return to another suitable and appropriate alternative job. The right is to return on terms and conditions no less favourable than if maternity or adoption leave had not been taken, with seniority and pension rights unaffected.
Returning after shared parental leave: An employee who returns to work after taking SPL is entitled to return to the same job, as long as their total leave period, after adding together all maternity, paternity, adoption and SPL, comes to 26 weeks or less. Unpaid parental leave of four weeks can be added without affecting this right. Where the total number of weeks of maternity, paternity, adoption and SPL exceed 26 weeks, or more than four weeks’ unpaid parental leave have been taken, the right is to return to the same job unless it is not reasonably practicable, in which case, it is a right to return to a suitable and appropriate job on no less favourable terms and conditions.
Acas suggests that changes to a role after 26 weeks’ absence can rarely be justified and that an employee who believes they have been unreasonably prevented from returning to their role should protest in writing and seek support from their union.
An employer cannot refuse to take someone back because they prefer their temporary replacement (see, for example, SG Petch Limited v English-Stewart [2012] UKEAT/0213/12/JQJ).
A woman returning from maternity leave has the right to request flexible working (see page 244).