Returning to work

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 notice of their early return date, following the statutory procedure.

A woman returning from Ordinary Maternity or Adoption Leave (i.e. within the first six months of leave) and a man returning from Additional Paternity Leave are entitled to the same basic right: to return to the same job he or she was employed to do before the absence. The “same job” means the work she 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.

In Kelly v Secretary of State for Justice [2013] UKEAT/0227/13/JQJ, the EAT confirmed that the written wording of the contract or job description is not the end of the story. 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. This 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. Kelly’s job title was “prison officer”, but she had worked for 15 years as a Health Care Officer for the prison service before going on maternity leave, so that was the role to which she would have been entitled to return.

A woman returning from Additional Maternity or Additional Adoption Leave has less comprehensive rights than someone who decides to return to work after six months’ leave or less. She has the right to return to the same job she was doing, or if that is not reasonably practicable, to another suitable and appropriate alternative role. Her right is to return on terms and conditions no less favourable than if she had not taken Maternity or Adoption Leave, with her seniority and pension rights as they would have been had she not taken leave. In particular, her employer cannot refuse to take her back just because her replacement is found to be a more effective worker (see SG Petch Limited v English-Stewart [2012] UKEAT/0213/12/JQJ).