Redundancy following maternity leave

The Employment Appeal Tribunal finds that a dismissal for redundancy following maternity leave was not necessarily unfair. Employment solicitor Sam Greehalgh and trainee solicitor Laura Tanguay report.

The claimant in this case was employed part time as a manager in the respondent company’s sales and marketing department. The claimant went on maternity leave and upon returning to work she was asked to attend a meeting with her manager. During the meeting, the claimant’s manager was alleged to have said: “I will cut to the chase on this one … as you have been off for what is it, a year or so and we have managed without you we are considering making the position of part-time marketing manager or whatever redundant. Your work has been absorbed by other members of your team”. The claimant was subsequently dismissed for redundancy.

The claimant brought claims for unfair dismissal and discrimination on the grounds of her maternity leave.

The employment tribunal concluded that the claimant had been unlawfully discriminated against and unfairly dismissed because the reason for dismissal was connected to the claimant’s maternity leave; she was the only person singled out for redundancy.

The respondent appealed to the Employment Appeal Tribunal (“EAT”).

The EAT Decision

The EAT upheld the respondent’s appeal and remitted the case to the tribunal for a further hearing.

According to the EAT, the tribunal erred in concluding that there was a discriminatory dismissal, as it failed to ask the relevant questions, namely: (a) whether the reason or principal reason for dismissal was redundancy; (b) whether the circumstances of the redundancy applied equally to employees holding similar positions who had not been dismissed; and (c) whether the reason or principal reason for the dismissal was connected to the fact that the claimant took maternity leave.

The EAT was satisfied that both (a) and (c) applied in the claimant’s case, but it referred the matter back to the tribunal to deliberate whether (b) also applied. The tribunal needed to consider the precise job descriptions and work carried out by the other three members of the department, to determine whether the claimant should have been pooled with those individuals rather than being singled out for redundancy.

Comment

The scenario that arose in this case is not uncommon, but employers should always tread carefully in carrying out a redundancy exercise involving individuals who are pregnant or on maternity leave.

If a redundancy situation arises during an individual’s maternity leave, that individual must be properly consulted with along with any other affected employees. It is not the case that employees on maternity leave are exempt from being made redundant; however, they have the right to be offered alternative employment in preference to other redundant employees, where any is available. ACAS recently published a guide for employers on managing redundancy for pregnant employees or those on maternity leave, which is available on their website.

A copy of the EAT judgment is available here.

For any employment enquiries please contact the Steeles Law employment team on [email protected] or 01603 598000.