You have to keep the same job available for those who return from ordinary maternity leave, and the same or a similar job available for those who return from additional maternity leave. The small firms' exemption - previously available to those who employed five people or fewer - from unfair dismissal claims if there was no job for a woman returning from additional maternity leave, has been withdrawn.
In a recent case the Employment Appeals Tribunal (EAT) provided some guidance on the elements to be considered in deciding whether a woman has returned to the 'same' job. The EAT said three aspects of the work should be considered:
- its nature;
- the woman's 'capacity' (ie function) in doing it; and
- where it would be performed.
It was, the EAT said, up to the tribunal hearing the case to decide whether the latter two aspects were acceptable.
