The Right to Return to Work
In the 1980’s, the introduction of legislation to uphold the rights of expectant mothers, represented a watershed moment. It was vindication for those who had campaigned tirelessly for maternity protection to be enshrined in Statute in Ireland. This ground breaking legislation, afforded specific protections to pregnant employees for the first time. Current rights which were legislated for during the 1990s, protect in particular, the fundamental right of a woman to avail of maternity leave, irrespective of her length of service to her current employer.
The Work Relations Commission in Ireland has championed the rights of pregnant workers and has sanctioned employers who have terminated a woman’s employment specifically because she is pregnant. They are also vigilant against companies attempting to fire an employee during her maternity leave.
Most significantly, the basic right to return to work after a period of maternity leave is now protected in law. Explicitly stated, a woman is entitled to return to her post, with the same terms and conditions afford to her, before she commenced parental leave.
There is however one key stipulation. Legislation passed in 1994 permits an employer to provide, “suitable alternative work” if it is not “reasonably practicable” for the woman to return to exactly the same role. This allows for the practical reality that a particular job may evolve over time, thereby requiring a flexible approach on the part of the employee.
Employers should be cautious though, because this provision does not provide them unlimited latitude. There remain key protections in place for the employee. Significantly, any change must not equate to a woman losing her rank. This would be tantamount to demotion and would be actionable in law. Unsurprisingly the interpretation of “suitable alternative work.” has been hotly contested.
Some employers may however still try to sidestep these laws with a Machiavellian approach. An employer may, for example, alter the employees duties substantially. This can lead to the employee feeling ostracised and exasperated. In many cases, this can result in the woman ultimately tendering her resignation.
Despite the fact that Maternity rights are considered by lawyers to be at the pinnacle of employment protection, many employers still fall foul of this legislation. This can lead to substantial financial pay-outs to the injured party and of course, result is serious reputational damage to the employer.
The legal protections provided by current legislation are wide-ranging and comprehensive. Employers should be aware that if they fail to respect a woman’s maternity rights, they may end up getting more than they were expecting.
Words by Paula Logan
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