Failure to permit return after childbirth treated as dismissal
128.—(1) Where an employee who—
(a)has the right conferred by Article 111, and
(b)has exercised it in accordance with Article 114,
is not permitted to return to work, she shall (subject to the following provisions of this Article) 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) Paragraph (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 Article 111 or for him or an associated employer to offer her employment under a contract of employment satisfying the conditions specified in paragraph (4).
(3) Paragraph (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 Article 111,
(b)he or an associated employer offers her employment under a contract of employment satisfying the conditions specified in paragraph (4), and
(c)she accepts or unreasonably refuses that offer.
(4) The conditions referred to in paragraphs (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 Article 111.
(5) Where on a complaint of unfair dismissal any question arises as to whether the operation of paragraph (1) is excluded by the provisions of paragraph (2) or (3), it is for the employer to show that the provisions in question were satisfied in relation to the complainant.
(6) Paragraph (2) shall not apply in relation to the employment of a person by the managers of a voluntary school within the meaning of the [1986 NI 3.] Education and Libraries (Northern Ireland) Order 1986.