One size doesn’t fit all: right to return to suitable post is not just a question of job title

An employee returning to work after additional maternity leave has the right to return to the job in which she was employed before her absence or, if it is not reasonably practicable for the employer to allow her to return to that job, to another job that is ‘both suitable for her and appropriate for her in the circumstances’. The purpose of the right is to allow the returnee to come back to a work situation as near as possible to the one she left.

The claimant in Kelly v Secretary of State for Justice had been employed at a prison. She came back from maternity leave to find that the job she had previously carried out, detailed in her job description as a ‘Healthcare Officer (Prison Mental Health Lead — Prison)’, was no longer available, because the health services aspect had been outsourced to the NHS. The only post available to her was a job as an ‘ordinary’ prison officer. She complained that this was a breach of her right to return.

The employee’s job description made it clear that she was employed as a mental health nurse. There was a short passage at the end referring to ‘prison officer duties as directed’, including ‘control prisoner movement’, but it was accepted that only five per cent of her duties during more than 15 years’ work at the prison had been as a regular prison officer…

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