Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, advise on the correct procedures to follow when an employee, on return from maternity leave, has allegations made against her and must attend a disciplinary hearing.

The question:

I have a colleague who has just returned from maternity leave, to hear that she has to attend an immediate disciplinary hearing for gross misconduct because she is alleged to have made subordinates cry and has allegedly been heard to use expletives.

It is interesting that these allegations have been brought by subordinates, possibly to the manager who is covering for my colleague whilst on leave, who has also made it known that she would like to remain in my colleague’s role.

I know that this question goes beyond any simple advice, however, as you can understand I would like to direct said colleague to path of defence to protect her reputation and career.

Legal advice:

Esther Smith, partner, Thomas Eggar

As you say there is no simple response to this enquiry, and obviously the individual facts of any such situation are very relevant to the advice provided. However, in general terms your colleague should approach this disciplinary as any other employee should approach a disciplinary allegation.

The fact that the allegations have arisen during her maternity leave does not affect the position, unless she could demonstrate that the allegations themselves in some form amount to discrimination on the grounds of her gender.

However, it appears that the allegations have arisen at this time as your colleague was absent from work, which is not unusual, but this in itself does not give rise to a sex discrimination argument. The fact that the person covering her role wants to stay in that position is, I think, a bit of a red herring unless your colleague has some evidence to suggest that the allegations raised are entirely fabricated by the subordinates. It would be extremely hard to establish that the person covering for her is somehow responsible for the allegations which have been made by other people.

Obviously if she has been treated any differently in terms of the disciplinary procedure adopted, as a result of her being off work on maternity leave, this may give rise to a claim.

Therefore your colleague needs to understand fully what the allegations are against her and prepare her response to these allegations in advance of the disciplinary hearing. If the allegations were known to the employer before this employee went on maternity leave she should challenge why she was not told of them beforehand.Without seeing the evidence in support of the allegations and knowing more about the process adopted by the company I cannot advise further. However if your colleague is in any doubt as to her position she should seek independent legal advice or at the very least consult her local Citizens Advice Bureau.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar

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Martin Brewer, partner and employment law specialist, Mills & Reeve

There’s no simple answer to this as you are effectively impugning the motive of the staff/manager in raising these issues. Yes the timing sucks but if the allegations are true (and interestingly you don’t say they are not) and if such behaviour is against company rules or standards of good behaviour, then the employee concerned should expect some kind of punishment although this looks short of gross misconduct on the face of it.

What your colleague will want to do is ensure that she can defend herself against the specific allegations and will therefore need chapter and verse on dates, what was said, to whom, who else was present and so on. In other words, to see the full extent of the evidence so that she can, if necessary, challenge these allegations.

She should also be prepared to apologise if some/all of the allegations are true. If they are true, were they out of character? Did her behaviour change during the pregnancy? All of these factors can be brought to bear which will at least flag with a switched on employer that there could be a link between the unusual/out of character behaviour and the pregnancy which of itself gives rise to the possibility that any detrimental treatment as a result could amount to direct sex discrimination.

Martin Brewer is a partner at Mills & Reeve. Martin can be contacted at: martin.brewer@mills-reeve.com

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