Friday, September 28, 2007

Employment Law - Maternity Leave - Nature, Capacity, Place

The lawsuit of Blundell volt Government Body of St Roy Chapman Andrews Catholic Primary School and Another [2007], concerned a adult female who claimed that she was discriminated on the evidence of her pregnancy. Regulation 18 of the Motherhood and Parental Leave (etc) Regulations 1999 ("the Regulations") provides:

'(2) An employee who go backs to work ... is entitled to go back from leave of absence of absence to the occupation in which she was employed before her absence, or, if it is not reasonably operable for the employer to allow her to tax return to that job, to another occupation which is both suitable for her and appropriate for her to make in the circumstances'.

Regulation 2(1) provides:

'"Job" in relation to an employee returning after ... motherhood leave ... intends the nature of the work which she is employed to make in conformity with her contract and the capacity and topographic point in which she is so employed'.

The claimant was a instructor at the first respondent school. In the school twelvemonth 2002 to 2003 she was given the duty of being a instructor for the yellowish response class. In June 2003, she told the 2nd respondent, who was the caput teacher, that she was pregnant.

The caput teacher's criterion pattern towards the end of the school twelvemonth was to inquire each instructor what their penchants were on social class allotment for the approaching academic year. She usually tried to maintain each instructor in a peculiar function for two years. Having been told of the at hand motherhood leave, the caput instructor asked the claimant if she would set about "floating duties" in the followers year.

The claimant originally agreed, however, the adjacent twenty-four hours told the caput instructor that she did not wish to have got a "floating role". The caput instructor then told the claimant that she had decided, reluctantly owed to her concern about the break to the children, to let the claimant to learn response yellowness again.

Subsequently, on the 5th of December, before the end of the school term, the claimant took ill leave of absence because she was suffering from a gestation related condition. She then had her babe in January 2004. She was not owed to go back to work until the start of the fall term and the caput instructor did not inquire her for her penchant as to social social social class allotment in June 2004.

Shortly before her tax return to work the caput instructor offered her the option of a "floating role" or class instructor of class two. The claimant opted for the latter, although she had never taught twelvemonth two previously and, on her case, twelvemonth two involved heavy responsibility.

The claimant subsequently presented a claim for sexual activity favoritism in the employment tribunal, complaining that she had suffered a figure of hurts by ground of her pregnancy. The court dismissed the claim and so the claimant appealed to the Employment Appeals Tribunal.

On appeal, an issue arose as to the significance of "job" in the phrase "the occupation in which she was employed before her absence" in ordinance 18(2) of the Regulations.

The entreaty court held as follows:

The purpose of the Regulations was to supply that a returnee came back to a work state of affairs as close as possible to that she left. The intent of the Regulations was continuity, preferably avoiding dislocation. The contract was not definitive. The phrase "in conformity with her contract" qualified only the 'nature' of the work. The court felt that capacity was more than than 'status', although mightiness embrace it. It was deemed a factual label and so was descriptive of the mathematical function which the employee served in doing work of the nature she did. The fact that it was a factual label, and so not determined purely by the contract, was most readily demonstrated by considering the word 'place', which was also not purely contractual.

The degree of specificity with which the three substances 'nature', 'capacity' and 'place' were to be addressed was critical and the cardinal inquiry was how the degree of specificity should be determined and by whom.

The inquiry was essentially one of factual finding and judgement and hence for the court at first instance.

In approaching the question, the court had to have got in head both the intents of the statute law and the fact that the Regulations themselves provided for exceeding cases. These exceeding lawsuits being where it was not reasonably operable for the employer to allow her to tax tax return to her former job, the employer might supply for her return to another occupation which was both suitable for her and appropriate for her to make in the circumstances.

The statute law sought to guarantee that there was as small disruption as reasonably possible in her workings life, and given that the intent of the statute law was to protect the employee there was no demand to interpret 'the same job' as covering a wide spectrum of work in order to guarantee an appropriate balance between employer and employee.

The term "Job" could be quite specifically defined. Leeway was provided by an employer being able to supply a occupation which was not the same job, but was still suitable. Where a precise topographic point was variable, a court was not obliged to freeze clip at the precise minute its resident took motherhood leave, but might have got respect to the normal scope within which fluctuation had previously occurred.

In this case, the court had given the right reply on the determinations of fact it had made.

Throughout its determination was the subject that the claimant could be required to learn any social social class as asked by her head, and that was a real, not simply a theoretical demand deriving from the contract alone.

§ The nature of her work, according to her contract, was as a teacher.

§ Her capacity, as a substance of fact, was viewed more than realistically as a class instructor than as a instructor of response yellow.

§ The place of work could not be said to be the response classroom, but the school.

The station the claimant returned to was the same post, if the degree of specificity was properly to be regarded as 'teacher'. If it was temporarily more than specific, because the precise station varied, the inquiry was whether the occupation on tax return drop outside the bounds of what was permissible. It was clear that the court establish that it was not outside the normal scope of variableness which the claimant could have got expected.

It was therefore held that the entreaty would be dismissed on all evidence save that in relation to the failure to inquire the claimant in June 2004 to state a penchant as to the social class she wished to take in the followers year.

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© RT COOPERS, 2007. This Briefing Note makes not supply a comprehensive or complete statement of the law relating to the issues discussed nor makes it represent legal advice. It is intended only to foreground general issues. Specialist legal advice should always be sought in relation to peculiar circumstances.

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