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Employment Rights Act 1996

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96 Failure to permit return after childbirth treated as dismissal.E+W+S

(1)Where an employee who—

(a)has the right conferred by section 79, and

(b)has exercised it in accordance with section 82,

is not permitted to return to work, she shall (subject to the following provisions of this section) be taken for the purposes of this Part to be dismissed for the reason for which she was not permitted to return with effect from the notified day of return (being deemed to have been continuously employed until that day).

(2)Subsection (1) does not apply in relation to an employee if—

(a)immediately before the end of her maternity leave period (or, if it ends by reason of dismissal, immediately before the dismissal) the number of employees employed by her employer, added to the number employed by any associated employer of his, did not exceed five, and

(b)it is not reasonably practicable for the employer (who may be the same employer or a successor of his) to permit her to return to work under section 79 or for him or an associated employer to offer her employment under a contract of employment satisfying the conditions specified in subsection (4).

(3)Subsection (1) does not apply in relation to an employee if—

(a)it is not reasonably practicable for a reason other than redundancy for the employer (who may be the same employer or a successor of his) to permit her to return to work under section 79,

(b)he or an associated employer offers her employment under a contract of employment satisfying the conditions specified in subsection (4), and

(c)she accepts or unreasonably refuses that offer.

(4)The conditions referred to in subsections (2) and (3) are—

(a)that the work to be done under the contract is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and

(b)that the provisions of the contract as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had returned to work under section 79.

(5)Where on a complaint of unfair dismissal any question arises as to whether the operation of subsection (1) is excluded by the provisions of subsection (2) or (3), it is for the employer to show that the provisions in question were satisfied in relation to the complainant.

(6)Where subsection (1) applies to an employee who was employed as a shop worker, or a betting worker, under her contract of employment on the last day of her maternity leave period, she shall be treated for the purposes of this Act as if she had been employed as a shop worker, or a betting worker, on the day with effect from which she is treated as dismissed.

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