Case law: clearer definition of 'same job' on return from maternity leave

A recent decision on what 'the same job' means in relation to an employee returning from maternity leave provides welcome guidance for employers.

A schoolteacher, returning from maternity leave, was allocated a different class from the one that she had taught previously. She brought a claim under the Sex Discrimination Act 1975 that she had been unfairly dismissed by reason of her pregnancy. She contended that she was entitled, by regulation 18 of the Maternity and Parental Leave Etc Regulations 1999, to return to 'the job in which she was employed before her absence'.

In finding that the employee had returned to the same job (ie as a teacher in the school and not as the teacher of a particular class), the Employment Appeal Tribunal (EAT) highlighted three aspects of the job, before and after the maternity leave, that should be taken into account, in accordance with the Regulations:

• the nature of the work (and not simply as described in her contract)
• her capacity (describing the function which she serves in doing work of the nature she does)
• the place where the work is performed.

The court made it clear that 'capacity' and 'place' are questions that fall to be determined at the discretion of the tribunal, guided by the central aim of providing continuity for the employee.

Immediate