We have an employee returning to work during additional maternity leave. She lost her baby and as a result cannot continue in her job as a cabin attendant. Is the company obliged to find a suitable job for her, and do we have to match her pay?
The short answer to this is ‘yes’ – if the business can find a suitable vacancy.
This employee is ‘entitled to return… to the job in which she was employed before her absence’ on terms and conditions not less favourable than those that would have been applicable had she not been absent.
Given that it is not reasonably practicable (for reasons other than redundancy) for her to continue her cabin attendant role, the business is obliged to offer her an alternative that is both suitable for her and appropriate for her to do in the circumstances. Suitable alternatives are assessed against the employee’s experience, skills set and retraining options.
The business should consider innovative strategies for dealing with the need to find an alternative, including potentially reassigning roles. The search for alternatives should be carried out across the organisation, including any associated companies or businesses.
If the employee’s role is redundant, then vacancies have to be offered to her in preference to other employees.
The new job has to be at the same pay rate as the cabin attendant role and be on no less favourable terms and conditions – ie, leave entitlements, pension contributions, work hours, travel distance to and from work, etc.
Caution needs to be exercised over whether it is practicable for the employee to return to her cabin attendant role. This decision should not be made unilaterally by the business, and she must be consulted on whether or not she can or should return to her old role. A health and safety risk assessment is advisable for the employee, whatever role she opts for on her return to work.
By Sara Khoja, solicitor, Field Fisher Waterhouse
Each week we ask the experts to answer your legal dilemmas. If you have a legal question or dilemma, e-mail email@example.com