In this article...

• The facts
• The EAT's decision
• What does it mean for me?

Beth Cobner looks at the recent case of Blundell v The Governing Body of St Andrew’s Catholic Primary School, in which the EAT considered exactly what “job” an employee is entitled to return to after maternity leave.

Regulation 18 of the Maternity and Parental Leave Regulations 1999 (the “Regulations”) provides that, following a period of statutory maternity leave, an employee is generally entitled to return to the “job in which she was employed before her absence”. A “job” is defined as “the nature of the work which she is employed to do in accordance with her contract and the capacity and place in which she is so employed” (Reg 2(1)).

Surprisingly, the concept of the “same job” has never been the subject of an appeal to the EAT – until now.

The facts

Mrs Blundell was employed as a teacher by St Andrew’s Catholic Primary School. The head teacher, Mrs Assid, had a practice of requiring teachers to change classes every two years to broaden their experience. Staff were asked to express a preference as to which class they would like to teach but there was no guarantee they would be allocated their preferred choice.

In the 2002/03 school year Mrs Blundell taught the “Reception Yellow” class. In June 2003 she told Mrs Assid that she was pregnant and was asked if she would undertake “floating” duties during the following year until her maternity leave began, rather than be assigned to a particular class. Despite initially agreeing to this, Mrs Blundell subsequently changed her mind and after much discussion Mrs Assid reluctantly agreed that she could teach the Reception Yellow class again for as much of the 2003/04 school year as she was able.

Mrs Blundell’s maternity leave began earlier than expected, in December 2003. As she was still on maternity leave at the end of the 2003/04 school year she was not asked what her preferences were for which class she would like to teach on her return. Shortly before Mrs Blundell returned to work, however, Mrs Assid gave her two options: she could either take up a floating role or teach a year two class.

Mrs Blundell chose the latter option but complained that it was particularly onerous as she had never taught year two previously. She maintained that she had a legal right to return to the same job she had left the previous December, i.e. reception class teacher. She brought a tribunal claim for sex discrimination.

The tribunal dismissed Mrs Blundell’s claim on the basis that she was employed by the school as a teacher, and had therefore returned to the same job. As a teacher, she could be required to teach any class within the school and her preference for one class or another was not determinative of what class she would be allocated.

The EAT's decision

The EAT upheld the tribunal’s decision and offered guidance on the three factors that must be taken into account when assessing whether a job is the “same job”. These are:

		the nature of the role – this encompasses the terms and conditions on which the employee carried out her previous role, and those contained within the new role;
		the capacity in which the woman is employed – this is the factual label, descriptive of the function which the employee serves. It is more than status but may encompass it; and
		the place where the role is carried out – this is not purely contractual and involves an assessment of where the employee actually worked as opposed to where she may be required to work under the contract.

The EAT held that the level of specificity with which these three matters are addressed is critical. However, this is essentially a question of fact for the tribunal, which must bear in mind:

		the purpose of the legislation, which seeks to ensure that there is as little dislocation as reasonably possible in the employee’s working life so as to avoid adding to the burdens which will inevitably exist in her family life; and
		the fact that the Regulations already provide for exceptional cases where, following a period of additional maternity leave, it is not reasonably practicable for the employer to permit the woman to return to her previous job, in which case he may provide for her to return to another job that is both suitable and appropriate.

The EAT did, however, find that the school’s failure to consult Mrs Blundell before the end of the 2003/04 school year regarding her teaching preferences amounted to an act of discrimination on the grounds of her sex: but for her being on maternity leave, she would have been consulted.

What does it mean for me?

		When assessing whether a woman has been permitted to return to the “same job”, the tribunal is not obliged to freeze time at the precise moment when she takes maternity leave but may have regard to the normal range of variation that has previously occurred in her role. This will give an employer greater flexibility to argue that the job offered on return is the same as the one that she left.
		However, tribunals will be alert to sudden flexibility being introduced shortly before a woman commences maternity leave as a ruse to allow the employer to offer her a significantly different job on her return.
		Employers should ensure that they fully inform and consult women on maternity leave in relation to the full range of workplace issues – including job vacancies, training opportunities and reorganisations.