1. Introduction
Section 26 of the Maternity Protection Act 1994 provides that an employee returning to work from maternity leave is entitled to return to the job which she held immediately before the start of the period of absence. The provision is a substantive right that gives effect to the protective purpose of the maternity leave regime.
This article addresses the Section 26 right, the limited exceptions provided by Section 27, the leading authorities, and the practical implications for both employers and employees.
2. Legislation and Case Law
Section 26(1) of the 1994 Act provides that, on return to work from maternity leave or additional maternity leave, the employee shall be entitled to return to the job which she held immediately before the start of the absence; with the contract under which she was employed (or, where a change of employer has occurred, with the successor); and under terms and conditions not less favourable than those that would have applied had she not been so absent.
Section 27 provides a limited exception. Where it is not reasonably practicable for the employer to permit the employee to return to her job, the employer must offer suitable alternative work. The work must be suitable in relation to the employee concerned and appropriate for her to do in the circumstances, and the terms and conditions must be not less favourable.
The reasonable practicability test is narrow and is to be construed restrictively. The Labour Court in An Employer v An Employee EDA1820 held that the test is not a question of preference or convenience for the employer but a question of objective practicability. Mere reorganisation of the workplace is not, in itself, sufficient.
The CJEU has reinforced these protections in cases including Dekker v Stichting Vormingscentrum voor Jong Volwassenen (C-177/88) and Webb v EMO Air Cargo (C-32/93). Less favourable treatment of an employee on grounds connected with pregnancy or maternity is direct sex discrimination.
3. Decision
WRC decisions on Section 26 have addressed the meaning of ‘the same job’ and the operation of the Section 27 exception. The decisions emphasise the substantive nature of the right and the narrow scope of the exception.
On the meaning of ‘the same job’, the Adjudication Officer has held that the employee is entitled to return to the same role, with the same duties, the same level of responsibility, and the same terms and conditions, as she held before the leave. Minor changes consequent on the passage of time are permissible; substantial changes are not.
On the Section 27 exception, the Adjudication Officer has held that the burden is on the employer to demonstrate that it was not reasonably practicable to permit the return to the same job. The employer must adduce specific evidence; assertion is not sufficient.
Where the employer fails to permit the return to the same job or to offer suitable alternative work, the employee has remedies under the Maternity Protection Acts, the Unfair Dismissals Acts (where the failure leads to dismissal), and the Employment Equality Acts (where the failure constitutes discrimination).
4. Takeaway
For employers, the Section 26 right is one of the strongest protections in Irish employment law. The right should be observed at face value, and any departure should be justified on the narrow Section 27 ground with specific contemporaneous evidence.
Where an employee is on maternity leave, organisational changes should be planned with the employee’s return in mind. Where changes are unavoidable, the employer should engage with the employee in advance and explore options for return.
For employees, the Section 26 right is an important protection. Practitioners should examine each aspect of the return – role, duties, responsibility, terms and conditions – to identify any departures from the pre-leave position.
Practitioners should also consider the parallel routes of complaint. A single set of facts may give rise to complaints under the Maternity Protection Acts, the Unfair Dismissals Acts, and the Employment Equality Acts. The substantive and procedural advantages of each route should be considered.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
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