Is it a legal requirement to inform employees on maternity leave of any vacancies in the company? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.
The question:
Do we legally have to inform employees on maternity leave of vacancies? Also, is there a difference between internal vacancies, which obviously they wouldn't see, and with external vacancies which everyone would see?
Legal advice:
Esther Smith, partner, Thomas Eggar
You should, as far as possible, try to treat employees who are away from the workplace for more than a couple of weeks (whether that is due to maternity or ill health) the same as you would any employee who was at work. Therefore, if there is some mechanism by which employees are informed or aware of internal job adverts, you should also take active steps to bring these vacancies to the attention of those outside of the workplace.
If employees at work are not notified of vacancies that are only advertised externally then there is no need to actively bring these to the attention of people who are absent, but most employers tend to advertise all positions, whether new or replacements, internally even if they are also being advertised externally.
The reason for this is to ensure that the absent employee does not claim that they have been treated less favourably than an employee who is at work, which for people on maternity leave would give them the potential to argue sex discrimination.
Often people who take maternity leave wish to return on reduced hours or flexible arrangements and therefore other positions that may arise during their absence may be of interest to them, if they are more suited to their ongoing requirements.
It may be sensible, where an employee is due to go on leave, to discuss with them whether they want to be kept up to date of vacancies, and how they would like them to be communicated. Some may not be bothered at all, whilst others may want to have access, whether in hard copy or remotely through the employer's intranet.
Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information, please visit Thomas Eggar.
* * *
Martin Brewer, partner, Mills & Reeve
I suppose it depends what you mean by 'legally'. If during a woman's maternity leave her job becomes redundant and you are considering dismissing her, she has the right to be offered alternative employment, essentially in preference to anyone else (see regulation 10 of the Maternity and Parental Leave Regulations 1999).
Since you have an obligation to act reasonably in determining whether to dismiss someone as redundant, and since part of that involves consultation with at risk staff, it seems to me inevitable that, in these circumstances, there is to all intents and purposes a 'legal obligation' to inform such staff of vacancies.
The other angle to look at this from is sex discrimination. You must not treat a woman less favourably because, amongst other things, she is taking maternity leave. To do so will be direct sex discrimination. So if under normal circumstances staff at work get access to vacancies, so should the woman on maternity leave. There is no difference between internal and external vacancies for these purposes.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com . For further information, please visit Mills & Reeve.
* * *
