Linda Hunt gets legal guidance this week from Helen Badger, employment law expert at Browne Jacobson and Martin Brewer, a Partner with the employment team of Mills & Reeve on how to deal with a succession of pregnant employees.

The question:
We have someone covering for an employee on maternity leave, they have only been here since January and today announced that they too are expecting!!! What happens now?

I understand that we would need to allow ordinary maternity leave with pay. If the original person on leave has not come back, we will need to get someone else to cover the person who is covering on maternity leave! Has anyone got any advice to offer on this topic?

Linda Hunt

The answers:
Helen Badger, employment law expert, Browne Jacobson

This is a complex situation with several legal implications that need to be carefully addressed.

All female employees, regardless of their length of service with the employer are entitled to 26 weeks ordinary maternity leave. The entitlement to payment during that leave is dependent on the woman having sufficient continuity of service. Statutory Maternity Pay (SMP) is only payable to mothers who have been continuously employed for over 26 weeks, prior to the end of the 15th week before the Expected Week of Childbirth (EWC).

If the replacement employee has been with you for 26 weeks by the 15th week before her EWC then she would be entitled to receive SMP. She would also be entitled to take a further 26 weeks additional maternity leave, which, unless there is anything to the contrary in the contract, is unpaid.

Assuming the replacement employee has the requisite length of service then she will be entitled to the leave and payment during the first 26 weeks. If the employee whose post it actually is, has not come back from her maternity leave by the time the replacement employee wishes to commence her leave, then you will have to find another replacement. To avoid further complication, it may be worth considering use of agency staff to cover this.

You will also need to consider what happens to the replacement employee at the end of her maternity leave. She would have the right to return to the post she was in prior to her leave. Where this is not reasonably practicable, because her position has been filled by the original post holder, she should be offered any other vacancies within the company. This would preferably be at, although as her position is redundant, not necessarily, the same rate of pay. If there are no such vacancies then this would be a redundancy situation. The employee would not have the requisite two years' continuous employment to qualify for a redundancy payment. You would need to ensure however, that you follow a consultation process with the employee prior to dismissing on the grounds of redundancy.

There is a possible situation where an employer would not be bound to re-employ the maternity cover. If it was made very clear to the candidate in writing prior to employment that the position was a temporary one and that she would only be employed up until the original post holder returned, then it would be possible to terminate at the point that was originally planned. However, to avoid claims of discrimination on the grounds of pregnancy, an employer would be wise to tread quite carefully and seek other roles for her before terminating.

Helen can be contacted at: hbadger@brownejacobson.com

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