UK: Maternity Matters - Recent Key Developments In Maternity-Related Rights

Last Updated: 18 September 2007
Article by Robert Hill and Nick Dent

Returning from maternity leave to the 'same job'

In Blundell v Governing Body of St Andrew's Catholic Primary School (2007), the EAT has given its first decision on the scope of an employee's right to return from maternity leave to the 'job in which she was employed before her absence'. In this case, Ms Blundell, a teacher, argued that her job was as a teacher of a specific class, and not as a primary school teacher.

The EAT held that the purpose of the legislation was to 'provide that a returnee comes back to a work situation as near as possible to that [which] she left'. The legislation sought to ensure that employees experience as little disruption as possible in their working life, to avoid adding to the burdens on mothers with very young children: 'Continuity, avoiding dislocation, is the aim.'

In assessing whether Ms Blundell had returned to the 'same job', the EAT considered:

  • the nature of her work (according to her contract) which it found was as a teacher;
  • her capacity (as a matter of fact) which it again found was as a teacher, and not as a teacher of a specific class, since the school customarily required teachers to change classes every two years; and
  • her place of work - which it found was the school, and not a specific classroom.

In light of this, it concluded that Ms Blundell could not insist on coming back to teach the same class after her maternity leave.

The EAT held that where, as here, an employee's role is variable, the question is whether the 'new' job falls within the normal range of what is permissible and could reasonably be expected by the employee.

Keeping in contact with mothers

Reports regarding the Maternity and Parental Leave Regulations 2006 (the "Regulations") , which came into force on 1 October 2006, principally focused on an employee's entitlement to maternity and adoption leave and notification requirements for employees returning to work after such leave. With a view to improving communication during maternity and adoption leave, the Regulations also clarified that reasonable contact between the employer and employee is permitted "from time to time" during the leave period. Both the employer and employee may make "reasonable contact" without the leave period being brought to an end. This is intended to enable employers to plan more easily, and to ease the employee's return to work. The Government intends to release guidance shortly to clarify what is meant by "reasonable contact".

Interestingly, the guidance given by the Department of Trade and Industry goes further than this, stating that employees on maternity leave should be kept informed of important developments at work and, specifically, that they should be informed of any relevant promotion opportunities or job vacancies which arise during their maternity leave period. In light of this, employers should ensure that they notify employees on maternity leave of any such opportunities.

The Government has also introduced "keeping in touch days", whereby an employee taking maternity or adoption leave can work for up to 10 days during the statutory leave period, without losing statutory maternity or adoption pay for that week, or bringing his or her leave to an end. The Government also intends to introduce "keeping in touch days" for fathers who take additional paternity leave.

Proposed changes to paternity leave

Under the Work and Families Act 2006, provision is made for mothers to take up to one year's paid maternity leave, and for fathers to take up to six months' paid additional paternity leave ("APL"), where the mother does not take the full year. In May 2007, the DTI published a consultation document setting out further details of how the APL scheme will be brought into force and administered.

The DTI is proposing a self-certification process, under which the father and mother will certify key facts to the father's employer concerning the father's eligibility for APL. This will include a declaration from the mother that she was entitled to statutory maternity leave and pay, and that she is returning to work and ending her maternity leave.

The earliest that APL will be available to fathers is in respect of babies due on or after 5 April 2009.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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