Kelly v Secretary Of State For Justice (Maternity Rights and Parental Leave : Return to work)

Under Maternity and Parental Leave Regulations 1999, an employee’s contractual job title does not conclusively determine either the job from which she returns or whether an alternative job is suitable and appropriate. The tribunal must assess the factual nature of the work, including the job description and actual duties, consistently with the legislative aim of continuity and avoiding dislocation on return from maternity leave.

Where return to the original job is not reasonably practicable, suitability and appropriateness require an evaluative assessment of all relevant circumstances. A tribunal errs if it treats the contractual title as making an alternative role necessarily suitable and appropriate.

The claimant had worked principally as a prison mental-health nurse and Lead Healthcare Officer, while remaining contractually employed, paid and trained as a prison officer. During her maternity leave, prison healthcare services were outsourced and her specialist role ceased to be available. The only offered role was that of an ordinary prison officer.

The Employment Tribunal found that her pre-leave job was the healthcare role and that return to it was not reasonably practicable. It nevertheless dismissed her claim under Regulation 18 of the Maternity and Parental Leave Regulations 1999, holding that the prison-officer role was suitable and appropriate because it was her contractual role. She appealed against that conclusion.

1. Appeal allowed. The Employment Tribunal erred in law by treating the claimant’s contractual status as a prison officer as determinative of whether the offered ordinary prison-officer role was suitable and appropriate under Regulation 18 of the Maternity and Parental Leave Regulations 1999.

2. The tribunal had correctly found that the relevant pre-leave job was the Lead Healthcare Officer role and that return to it was not reasonably practicable. The definition of “job” required attention to the factual nature of the work, the capacity in which it was performed and the place of work. The contract was not conclusive. That approach accorded with Blundell v Governing Body of St Andrew’s Catholic Primary School [2007] ICR 1451.

3. Having made those findings, the tribunal could not conclude that the alternative role was necessarily suitable and appropriate merely because the claimant’s contract described her as a prison officer. That reasoning fettered the required evaluative judgment and failed to give proper effect to the job description and the work actually undertaken.

4. The question required consideration of all relevant circumstances. These included the loss of nursing work and its possible effect on professional qualifications; the possible requirement to work weekends; the claimant’s experience and training in the prison environment; her prison-officer grade, pay and benefits; and the further training offered. The Appeal Tribunal could not itself decide whether the alternative role was unsuitable, since a properly directed tribunal could reach an arguable conclusion either way.

5. The matter was remitted, by agreement, to a fresh Employment Tribunal to determine whether the offered role was suitable and appropriate.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the Regulation 18 issue to a fresh Employment Tribunal: [2013] UKEAT 0227_13_2511.
• Employment Tribunal, Bury St Edmunds: Following a six-day hearing in November 2012, dismissed the claim in a decision given on 2 January 2013. Its conclusion on the suitability and appropriateness of the offered role was set aside.