In the last of our series looking at Pregnancy and Maternity in business, Anne-Marie Boyle looks at the tricky issues thrown up where a dismissal situation (including redundancy) arises during or after a period of maternity leave.
We know that in life (despite our best efforts), nothing stays the same and this is very much the case in the workplace also. It is possibly a woman’s biggest work fear that whilst she is on maternity leave, her employer will decide they no longer need her – or worse, prefer her ‘stand-in’. In my experience, and those of my colleagues, neither of these scenarios are a rare occurrence.
Special protections for women who are pregnant or taking maternity leave
There are specific protections for women around this time. These protections include a claim for automatic unfair dismissal (so, no need for 2 years’ qualifying service) if:
- A women’s dismissal is connected with her pregnancy or maternity leave; or
- A woman is made redundant and s10 of the Maternity and Parental Leave Regulations 1999 (MAPLE) apply and have not been followed (more on this one later!); or
- A woman is made redundant from a pool and her selection is connected with her taking maternity leave or pregnancy.
Additionally there are the significant protections in the Equality Act 2010. These prevent discrimination by reason of pregnancy and maternity and sex discrimination when someone is dismissed.
Again, these claims do not require any qualifying service and can attract unlimited compensation and injury to feelings award. (Our earlier blogs would be worth referring back to for more detail Menzies Law Blogs)
What about where an employee’s absence on maternity leave reveals to her employer that her role is not needed?
This happens a lot in practice. Work is distributed whilst the employee is away amongst others in the team, or, is simply not done.
This was the case in SG Petch Ltd v English-Stewart. Ms English-Stewart was employed as a marketing manager with a team of 5. As she attempted to return from maternity leave, her manager informed her that ‘they had coped’ without her and therefore she was redundant.
She brought a claim for unfair dismissal arguing that her dismissal was ‘connected’ with her pregnancy. At the EAT, they found that the reason for the Claimants dismissal was not that she had taken maternity leave, but because she was redundant because her work had been distributed elsewhere.
However, the EAT sent the case back for reconsideration on the ‘selection’ point above. Should she have been in a pool for selection? And if so, why was she selected? Clearly, if the only reason she was selected for redundancy was because she had just been on maternity leave, then she would be successful (which in this case it certainly looked like the case!).
The clear message is that whilst it is not in itself unlawful for an employer to consider a redundancy situation that arises by virtue of a maternity leave, this type of scenario must be handled correctly.
Employers should be asking themselves ‘are other employees doing similar work?’ If so, should there be a wider selection process. Fair selection criteria and its application will also be crucial here. If the employee who is coming back from maternity leave is the one who is selected, you need to ensure you have transparent objective reasons for picking her.
The ‘section 10’ conundrum
This is another tricky and often misunderstood area of law. Section 10 of MAPLE provides an obligation on an employer to make an employee an offer of suitable alternative employment once she is redundant or at risk of redundancy whilst she is on maternity leave.
When does this duty kick in? As soon as the decision is made to delete the woman’s role.
It does not arise following a competitive interview process to decide which employees to slot into a new role because their positions have been made redundant. It does, in effect, put women on maternity leave at ‘the front of the queue’ for alternative positions. It also only applies if the woman is still on maternity leave. Once she has returned to work (or also whilst pregnant) there is no specific protection under s10 MAPLE. As such, we are aware of some employers delaying any decision until after an employee has returned to work.
What must be offered? This is interesting – the employer has to make ‘an’ offer of a suitable alternative vacancy: it does not necessarily have to offer every role or even the role that the woman most wants (if there is good reason for not doing so).
What about if you have more than one woman made redundant, still on maternity leave yet there is only one suitable alternative vacancy? My best guess here is that you can make a conditional ‘offer’ (which is all the law requires) to both women and if they both accept it, then they can be asked to attend a competitive interview or other selection process.
Is there a legal obligation for an employer to provide cover for a woman’s role whilst she is on maternity leave?
Again, an interesting one. Many woman would argue that if their role is not covered whilst they are away, then it is obvious that their role will ‘shrink’ and make a redundancy inevitable when they try to return to work. There is a logic to this and it is definitely something I have witnessed in practice.
Whilst there is no statutory obligation on an employer to ‘cover’ a role whilst their employee is on maternity leave (and many will take the opportunity to make some costs savings at this time), I think it is definitely arguable that, for certain types of roles, a failure to recruit cover could amount to pregnancy/maternity discrimination under the Equality Act.
Of course, it is open to an employer to argue that it would do the same with any type of lengthy employee absence – but it is certainly one to think about.
We have advised employers on many dismissal scenarios arising around the same time as either a pregnancy or a maternity leave. Our advice is invariably to be very sure why the dismissal (usually redundancy, but not always) is necessary and justified. If there are transparent and objective reasons, there is no reason for this to be unlawful or discriminatory. However, the procedure adopted will be crucial both to ensuring the decision-making is objective and not open to challenge.
This is the last in our Pregnancy and Maternity Blog series. Tamsin and I really hope you have found them useful. As always we’d welcome your thoughts and feedback and of course if you have a pregnancy or maternity issue you’d like advice on, please get in touch with us. / / 0117 325 0526