Right to return

Entitled to return to work to the job in which she was employed before her absence with her

seniority, pension rights and similar rights, and terms and conditions which are no less

favourable than before.her OML. It also counts towards her period of continuous

employment.

Failure to return after OML

Will not terminate contract of employment, court will look at intention of employee. If she

intended not to return then they will interpret her act as terminating the contract. Failing any

intention, employers will need to discover the reason for a late return before taking action.

Failure to treat her the same as any other late returner could lead to discrimination or UD.

Compulsory ML Employer must not let a woman return to work within the 2 week period from childbirth, it is a criminal offence.

AML Period

If at the start of the 14 th week before EWC, a woman has completed 26 weeks continuous employment, she will be entitled to AML. It will commence on the day after the last day of

OML and continue for up to 26 weeks. She does not have to tell her employer her intention to take this when she notifies him of her OML.

Rights during AML – Check the Notary Public London website

Employment contract continues throughout AML, including certain terms and conditions, for

example the benefit of her employer’s mutual trust and confidence, terms of termination of

her contract, compensation in event of redundancy and disciplinary and grievance

procedures. The woman is bound by good faith and any termination terms of her contract.

The woman is not entitled to remuneration or benefit of normal terms and conditions.

Returning to work after AML

No notice needed if return intended at end of AML, however 28 days notice is needed if she

wishes to return sooner. Again, if she fails employer entitled to postpone her return for up to

28 days.

Statutory right to return to the job in which she was employed before or if not reasonably

practicable for the employer to allow her to return to that job, for a reason other than

redundancy, to a suitable and appropriate job on no less favourable terms and conditions,

pension rights etc.

If the offer is not suitable, the woman can bring a complaint for UD and perhaps sex

discrim/wrongful dismissal.

An employee who wishes to return on different terms and conditions ie part time, may do so

as they may have a claim for indirect sex discrim if employer refuses, there is no statutory

right.

Sickness at end of OML or AML

Where unable to return to work after OML or AML due to sickness, the normal contractual

arrangements for sickness will apply. She will be treated like any other employee.

3

Dismissal – Special Protection Redundancy

 During O or AML, if it’s not practicable for the employer, by reason of redundancy, to

continue to employ the woman under her existing T&C, she must be offered any

suitable alternative vacancy (SAV), even if she’s not the most suitable candidate.

 If there’s no s.a.v. then she must be objectively selected for redundancy. If the

woman is dismissed by redundancy, due to her pregnancy or by non compliance with

this provision, then it will be UD.

Dismissal – special protection Automatically Unfair Dismissal s99 ERA; s1 SDA

RB197, 9.9

ï‚· A woman who is dismissed is entitled under s99, to be regarded as UD if the reason

is connected with:

a) pregnancy of employee;

b) the fact that she has given birth and the dismissal ends the woman’s

OML or AML period;

c) the fact that she is on maternity suspension;

d) the fact that she took OML or sought to take it or availed herself of the

benefits of any T&Cs;

e) the fact that she took or sought to take AML;

f) failed to return after O or AML where employer did not give an end date

of her O or AML, or employer gave less than 28 days notice of end of O

or AML and it wasn’t practical for her to return.

ï‚· Reasons a) and b) above, apply protection to the end of OML or AML;

ï‚· c-f) reasons extend beyond.

ï‚· Employee is not required to prove her dismissal was for one of the above reasons,

she only has to adduce evidence to create a presumption, and if the employer is

arguing the reason was other than the pregnancy then it is up to him to prove this.

If the reason is found to be within one of the above, the employer cannot argue it

was reasonable and it will be automatically unfair.

ï‚· Defence:

o small employer, ie less than 5 employees (cos not practicable to come back);

o some other substantial reason (SOSR);

o no suitable alternative vacancy (SAV).

o REMEMBER – for direct D the e/er cant plead justification unless he’s a small

e/er (as above)

ï‚· If woman dismissed during her pregnancy or during her O or AML then if based on

her pregnancy that will be discriminatory on grounds of sex without need for male

comparator – direct discrimination on grounds of sex. Neil Buzzard reckons this is

actually indirect D cos it’s not cos she’s a woman its cos she’s pregnant.

ï‚· If woman is dismissed after O or AML then it may be discriminatory, but court will

have to consider whether she was treated less favourably than a man was or would have been treated (ignoring time off work whilst on ML) therefore need a comparator.

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To harm a person = to diminish his prospects & adversely affect his possibilities

  • The principle of autonomy is consistent w/enforcement of morality à purpose: compare the scope & justification of Mill’s harm principle w/autonomy based freedom.
  • One harms another when his actions make him worse off than he was/is entitled to be in a way that affects his future well being, so if the govt. has a duty to promote autonomy of people, the harm principle allows it to use coercion both in order to stop people from actions which would diminish autonomy and in order to force them to take actions required to improve their options & opportunities.
  • Even if we aren’t directly causing harm; e.g. by not paying taxes, it’s still harm to un-assignable individual – one causes harm if one fails in his duty to a person/class of persons, and they suffer as a result. That’s so even if allocation of loss was determined by other hands (e.g. taxation).
  • So the harm principle allows full scope to autonomy based dutiesa person who fails to discharge such duties towards others harms them, hence govt. whose resp. is to promote autonomy of citizens is entitled to redistribute resources, provide public goods & engage in provision of other services on compulsory basis, provided its laws reflect and make concrete autonomy based duties of its citizens.
  • Coercion is used to ensure compliance w/law and, if the law reflects autonomy based duties, then failure to comply harms others and principle of harm is satisfied.
  • Harm principle can be vindicated once interpreted not as restraint on pursuit of moral goals by the state but as indicating the right way in which it could promote the people’s well being. Given that they should lead autonomous life, state can’t force them to be moral but it can provide conditions for autonomy. Using coercion invades autonomy, thus defeating the purpose of promoting it, unless done to promote autonomy by preventing harm. Seen in this light, harm principle allowed perfectionist policies, so long as they dpnt require resort to coercion. The principle thus sets a necessary condition but doesn’t justify all uses of coercion to prevent harm.
  • A culture which doesn’t support autonomy yet enables its people to live an adequate & satisfying life should be tolerated, despite its scant regard for autonomy but it will be inferior to a liberal society. So long as they’re viable communities, offering acceptable prospects to their members, they should be allowed to continue in their ways.