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Ask the expert: Return from maternity leave


Ask the expertUpon returning from maternity leave, an employee has been signed off sick for four weeks. Can the employer dismiss her? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.

The question:

We have a lady who has just come back from 12 months’ maternity leave. She only worked one day and she has been signed off for four weeks because of anxiety due to leaving the baby behind. As she is now back on payroll, we had to let the temp go because we can’t afford to pay her and the temp. The manager would like to let her go. Can we do that?

Legal advice:

Esther Smith, partner, Thomas Eggar

The simple answer is yes you can (the law can’t prevent you from doing things) but you would be immediately exposed to a potentially very costly claim.

As the lady’s maternity leave has ended, and in this case she has returned to work albeit for one day only, you should be treating her sickness absence as just that – sickness, even though it follows on from and is related to her pregnancy/childbirth.

Payment during her absence should be in accordance with her contract for any period of sickness, and if she does not return at the end of this certified period and is signed off again, then you may want to consider getting an independent medical report at that time to assess whether you have grounds to consider a capability dismissal.

As an employee with over a year’s service she has protection against unfair dismissal in the same way as any other employee does, and therefore to dismiss her fairly you would need both a potentially fair reason (capability if she remains signed off as unfit longer term) and to follow a fair procedure.

To simply dismiss now on the basis that she has only been back one day would be unfair, and in breach of the statutory dismissal procedures too. The maximum compensation currently available for an unfair dismissal claim is £63,000.

In addition, this lady would have a pretty good argument that her dismissal is discriminatory either on the grounds of her pregnancy/maternity (therefore related to gender) or due to a disability, or both.

At present it does not seem that you have any information, but it may well be that she is suffering from some condition which is covered by the DDA and therefore to dismiss her as a result of this would be discriminatory and expose you to a claim of potentially unlimited compensation.

On the maternity side, whilst you should treat the current sickness as entirely separate from the maternity issue, a tribunal will undoubtedly be persuaded that your swift dismissal of this lady in the circumstances is related directly to the fact that she has been on maternity leave for a year, and again compensation for sex discrimination is also unlimited.

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, Mills & Reeve

In a real sense this is the wrong question. Yes of course you can ‘let her go’ (I assume you mean dismiss her). You are the employer and you can pretty much do whatever you like.

The real question is what happens if you do. First you would have a claim for unfair dismissal and second a claim for sex discrimination. You would almost certainly lose both. First, ignoring the maternity leave, this employee doesn’t have a bad absence record so you will find it hard to justify a dismissal as reasonable. Second, it follows that if you can’t justify dismissal it is highly likely that the tribunal would find that the reason you dismissed is related to the birth of the child, in other words sex discrimination.

The best you can do is follow process, deal with the absence and if it persists move to dismiss at some time in the future.

Martin Brewer can be contacted at [email protected] . For further information, please visit Mills & Reeve.

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