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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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I have a lady wishes to return from maternity leave

Resolved Question:

I have a lady wishes to return from maternity leave following 10 months Maternity leave. Her previous role was a full time position. She is unable to return full time due to childcare costs. We are currently going through a period of restructure and when we first received her request we did think we were going to be able to accommodate her within another department on a part time basis as a member of the team had recently resigned. Several weeks later the same team has had another member of staff resign and the FD has agreed due to us cutting costs in other areas and a recruitment ban on imposed by our Germany owners that the department after losing 2 can replace with one full time position thus now not being able to accommodate the part time requirement we originally thought we had. Legally am I correct when saying that if we no longer have a position to offer on a part -time basis because of the recent (and they are recent) then we can politely advise that we don't currently have a part time position that we can offer.
Submitted: 11 months ago.
Category: Employment Law
Expert:  Ben Jones replied 11 months ago.

Hello did you formally agree to her request or was it just an indication?

Customer: replied 11 months ago.

Basically it was just an indication that we may be able to !! and at the time we suggested perhaps using some KIT days to trial the position as her previous role was Internals sales and the other role is/was with the Purchase Ledger department.

Expert:  Ben Jones replied 11 months ago.

Thank you. According to Reg. 18 of The Maternity and Parental Leave Regulations 1999, an employee who takes Additional Maternity Leave (i.e. between 6-12 months off) is entitled “to return to the job in which she was employed before her absence, or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances.”

This means that there is no guarantee of a return to the job she performed before going on maternity leave. If you can show that it is not reasonably practicable to allow her to return to that job, you need to find her something that is both suitable and appropriate for her to do instead.

A common issue that arises is whether the reason for not being reasonably practicable to allow the employee to return to her old job is actually justifiable. Case law has suggested that formal reorganisations can amount to a justifiable reason. The employer needs to show that there is a genuine reason which makes it no longer practicable to allow her to return to her old job, this is not just a formality.

So of things have genuinely changed and it is clearly no longer practicable to allow her to return to her old job, you can use the above regulations to justify your decision.

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