What is the 'same job' following maternity leave?

Blundell v St Andrews Catholic Primary School

When is a job not the same job? That was the question considered in Blundell v St Andrews Catholic Primary School, where for the first time the Employment Appeal Tribunal (EAT) considered the criteria to be used when assessing what exactly amounts to the 'same job' under the Maternity and Parental Leave Regulations 1999.

In the regulations, a woman returning from ordinary maternity leave has the right to "return to the same job, in which she was employed before her absence".

Background

Mrs Blundell was a primary school teacher. The practice in her school was for teachers to teach a particular class every two years and then rotate - to give them a breadth of experience.

At the time of commencing maternity leave in January 2004, she was in her second year of teaching the class 'reception yellow'. On her return to work, at the start of the following academic year, she was offered the choice of a floating role or teaching year two. She chose the latter. However, she claimed that this was a more stressful role, and not the same job that she had left prior to her maternity leave.

Decision

The EAT disagreed, and found her role to be that of a primary school teacher, and not specifically defined as a teacher of the reception yellow class.

An employer has to consider three things when deciding upon the 'same job': the 'nature' of the job, as provided by the contract of employment the 'capacity' in which the employee is employed, which is a factual label to describe the employee's function more than merely their status and the 'place' at which the employee works.

The issues of capacity and place are not dictated solely by the contract, but are to be decided by a tribunal on the particular facts. For example, where a mobility clause allowing for an alternative location exists in the contract of employment, this would not necessarily entitle an employer to move an employee on her return from maternity leave.

The EAT ruled that where there is variation to the role in practice, the employer is not obliged to "freeze time at the precise moment that maternity leave is taken, but may have regard to the normal range within which variation has previously occurred". It concluded that teaching year two was not outside the normal range of variability that she could reasonably have expected, and was therefore the 'same job'.

As her role was regularly rotated, the EAT found that the nature of her job was to teach at a primary school, her capacity was as a class teacher rather than a reception yellow teacher, and her place of work was at the school.

Key implications

Although of little comfort to Blundell, the EAT was keen to stress the purpose of the regulations, which is to ensure that women who return from maternity leave experience as little disruption as reasonably possible at an already stressful time for them.

While the EAT was sympathetic to the intentions of the regulations, the positive message for employers is that in practice, as in this case, it is likely that a generic job description and less rigid working practices will go a long way in affording them the flexibility that they may require.

The guidelines set out by the EAT are useful. However, nothing can be taken for granted and, where there is uncertainty, each case will still rest on its own facts.

Stefan Green is a lawyer in the employment and benefits team at Allen & Overy

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Case of the week: When can the 'without prejudice' rule be set aside?

In Brunel University & Schwartz v Webster & Vaseghi, the Court of Appeal analysed the 'without prejudice' rule and circumstances in which the rule can be set aside.

The without prejudice privilege attaches to evidence of settlement negotiations aimed at resolving disputes, and prevents such evidence being referred to in proceedings. However, privilege will fall away where both parties waive it, and can also be withdrawn where it would otherwise conceal unlawful behaviour.

Facts

Vaseghi and Webster brought claims of race discrimination against Brunel University. The without prejudice discussions to settle the disputes were unsuccessful and tribunal hearings went ahead. Subsequently, in a university newsletter, the vice-chancellor complained about the cost of defending the claims, and alluded to the fact that the claims had been accompanied by "unwarranted demands for money". Vaseghi and Webster brought victimisation grievances and tribunal claims on the basis of these comments. An independent panel set up by the university heard the grievances, including evidence about the without prejudice discussions.

The tribunal pleadings and bundle also contained various references to the settlement discussions. However, when Vaseghi and Webster disclosed a statement by a solicitor about these discussions, the university's lawyers objected on the basis that the evidence was without prejudice.

Decision

The Court of Appeal said that privilege had been waived on the basis that both parties:

Gave or called evidence of the without prejudice discussions at the independent panel review (an unusual forum as it was adversarial in nature and a formal trial)
Referred to the without prejudice discussions in their respective pleadings.
However, the court said that, in normal cases where without prejudice discussions are mentioned at internal grievance meetings, privilege would not be waived.

While the court declined to comment on whether there was an exception to the without prejudice rule in cases of discrimination to prevent the rule from concealing the "evil" of discrimination, it did say that it could understand that it may be difficult to prove discrimination if the general without prejudice rule applies fully in every case.

Key implications

Be aware that without prejudice protection will not apply in all cases and is not absolute. To protect the without prejudice status of communications:

Consider whether there is a dispute before speaking on a without prejudice basis. The rule only applies where there is a dispute between the parties and the discussions are a genuine attempt to end the dispute.
Label settlement documents 'without prejudice', although remember that a document will not become privileged merely because of its label.
Only refer to without prejudice communications during internal grievance proceedings where absolutely necessary, and make it clear that privilege is not being waived. Where independent panels are set up to determine grievances, beware that adducing evidence of without prejudice communications is likely to waive privilege.
Do not refer to without prejudice documents or discussions in pleadings, witness statements or any other tribunal documents.
The privilege may not cover communications that disclose evidence of discrimination. There remains a risk that the without prejudice rule will be set aside to allow a claimant to prove discrimination.



By Judith Harris, professional support lawyer, Addleshaw Goddard

HR LINK : http://www.personneltoday.com/