Under the Maternity and Parental Leave (etc.) Regulations 1999 an employee who takes additional maternity leave 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’.

In a claim of sex (pregnancy) discrimination (Blundell v St Andrew’s Catholic Primary School), the Employment Appeal Tribunal (EAT) considered for the first time the criteria to be used when determining what counts as the same job under the Regulations.

Mrs Blundell had worked at St Andrew’s since 1992 as one of 18 teachers. The head teacher, Mrs Assid, customarily allocated teachers to a particular responsibility for a period of two years and then changed their roles in order to give them a breadth of experience. During the school year 2002 to 2003, Mrs Blundell taught a reception class. In June 2003, she told Mrs Assid that she was pregnant and subsequently took maternity leave. On her return, Mrs Blundell was offered either the position of year 2 class teacher or she could undertake ‘floating duties’. She claimed that this was a breach of the Regulations, which gave her the right to return to the same job she was doing before her maternity leave.

The Employment Tribunal (ET) found that in Mrs Blundell’s situation ‘the job in which she was employed before her absence’ meant the job of teacher, not the temporary position she had held as a reception class teacher.

Mrs Blundell appealed to the EAT, which examined the definition of ‘job’ as provided for by the Regulations, which is ‘the nature of the work she is employed to do in accordance with the contract and the capacity and place in which she is so employed’. In its view, the level of specificity with which the terms ‘nature’, ‘capacity’ and ‘place’ are to be addressed is likely to be critical and should be determined as a question of fact by the ET, taking into account the purposes of the legislation and the fact that the Regulations themselves provide for exceptional cases where it is not reasonably practicable for an employer to allow a return to the exact same position. The ET held that the position Mrs Blundell occupied as reception teacher was temporary and ‘it seems plain to us that, where a precise position is variable, a Tribunal is not obliged to freeze time at the precise moment its occupant takes maternity leave, but may have regard to the normal range within which variation has previously occurred’.

In Mrs Blundell’s case, it was clear that the job she was given on her return to work was within the range of variability which she could reasonably have expected.