An HR Zone member gets legal guidance this week from Vanessa Di Cuffa, Solicitor at Mills & Reeve and Helen Badger, employment law expert, Browne Jacobson on whether it is legal to make an employee redundant whilst on maternity leave.
The question:
“We have a marketing administrator going on maternity leave at the end of May. She plans on taking her full maternity leave, returning in June 2007. We are revamping our marketing department under a new manager and her position could be made redundant by the time she returns.
“One of our managers told me that there is a UK law that specifies the amount of time she has to work for us upon her return before we can make her redundant. For example, she is still protected under maternity regulations for up to XX length of time upon her return.”
The answers:
Vanessa Di Cuffa, Solicitor at Mills & Reeve
There is no law which stipulates any length of time that an employee returning from maternity leave will have to work before the employer is able to make her redundant.
There are special provisions which apply to an employee who is likely to be made redundant whilst on maternity leave.
Regulation 10 (2) of the Maternity and Parental Leave Regulations 1999 states that in these circumstances, where there is a suitable alternative vacancy, the employee is entitled to be offered suitable alternative employment with her employer, his successor or an associated employer before the end of her employment under her existing contract.
The new contract must take effect immediately on the ending of the previous contract and must be such that:
- The work to be done is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and;
- Its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under her previous contract.
If a suitable alternative vacancy exists (that is a vacancy that is suitable, appropriate and not substantially less favourable than the employee's previous job) and the employer fails to offer it to the employee, the dismissal will be automatically unfair under s99 Employment Rights Act 1999 if the reason or principal reason for the dismissal is redundancy.
If, however, the employer does offer her such a vacancy and the employee unreasonably refuses it, her dismissal will almost certainly be fair and she will lose her right to a redundancy payment.
If there is no suitable alternative vacancy, the employee's employment (and her maternity leave period) will come to an end by reason of redundancy. She will, however, be entitled to her notice period and to a written statement of the reasons for her dismissal. She will also be entitled to a redundancy payment (statutory or contractual) provided she has sufficient qualifying service.
What is surprising about the employer's duty under Reg 10 to offer any suitable vacancy to a woman whose job becomes redundant while she is on maternity leave is that it appears to be absolute.
Thus, if suitable alternative employment is available it MUST be offered to that woman in preference to any other employee who is similarly affected by the redundancy situation but who is not absent on maternity leave.
A failure to do so will make the woman's dismissal automatically unfair. There is a significant risk that failure to follow the obligations imposed by regulation 10 could constitute direct sex discrimination, which is an uncapped liability.
Vanessa can be contacted at: vanessa.dicuffa@mills-reeve.com
