The right to return to the same job after family leave

Dr Anne Sammon considers the exposure an employer may have if an employee returns to a role that is significantly different.

Occasionally when an employee has been out on maternity/paternity/parental/shared parental leave, there may have been such significant changes to the way in which the business works that the job that s/he returns to might be significantly different. In these circumstances, what exposure does an employer have?

Is there a redundancy?

If there has been a decrease in the need for work of the particular kind carried out by the employee, then this would amount to a redundancy situation. In these circumstances, the employer should consider the steps that it needs to follow as regards consultation and the obligation to find suitable alternative employment at the time the redundancy situation arises, and not simply on the employee’s return.

No redundancy, but change in the role

The legislation provides for two different rights to return, depending on how much leave an employee has taken: (i) the right to return to the same job and (ii) the right to return to the same job unless it is not reasonably practicable to allow the employee to do so, in which case the employee has the right to return to a suitable alternative role.

In essence, where an employee has taken 26 weeks or less leave (whether this is as maternity/paternity/shared parental leave), the employee will have the more favourable right to return and where an employee has taken more than 26 weeks’ leave, the employee has the less favourable right to return. Parental leave is treated slightly differently so that if an employee takes more than 4 weeks’ leave, s/he will have the less favourable right to return (with anything less than this entitling the employee to the more favourable right).

In the event that an employee does not comply with the relevant right to return, the employee will be able to bring a claim for automatic unfair dismissal. In addition, the employee may try to run a discrimination argument, depending on the facts of the case.

However, employers should be aware that the definition of “same job” may be relatively wide and, thus, making changes to an employee’s role may not necessarily mean that the employee’s job is no longer the same. Given the fact specific nature of the question, each case needs to be considered on its own individual circumstances to determine whether the “job” is genuinely different or essentially the same. However, there are a couple of factors that are likely to point towards a role being a different job: 

  • Status - if the status of the employee within the organisation is lowered, this is likely to mean that an Employment Tribunal will consider that the role that the employee is returning to is not the “same job”. As such, employers should be particularly careful if the employee’s role is re-graded.
  • Remuneration - if the employee’s remuneration is reduced, this is likely to mean that the role is not considered to be the “same job”.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.