An employee, who’s currently on maternity leave, calls to tell you she’s pregnant again. “Dismissal” rather than “congratulations” probably springs to mind. But, as a recent case shows, this reaction could cost you over £100,000; why?
Cost of employers
Having an employee on maternity leave can be costly at the best of times, particularly if the woman decides to take full advantage of her twelve-month entitlement. But if she then goes on to have two (or more) children close together, it can be disastrous for a small business. So you would probably have some sympathy for the employer who reacted to an employee in this situation by terminating her contract of employment. It later came unstuck at tribunal, so what can you learn from this case?
Back-to-back maternity leave
Jacky Scott (S) had been employed as an office manager by Cox Long (CL), a small timber merchant. On September 23 2009 – whilst already taking twelve months’ maternity leave – S notified CL that she was “pregnant again”. In her letter, she stated: “I will return to work, as planned, on November 1 2009 and then take a second period of maternity leave from March 22 2010”.
Another year on. At this point, S also stated that she would be taking a further one year’s maternity leave from that date.
Dismissed via redundancy
Less than two weeks later, S was notified by CL that her position was “potentially redundant”; dismissal followed on November 2 2009. Following this, she successfully claimed sex discrimination at tribunal. But this wasn’t because an employer can’t ever make a woman on maternity leave redundant; it can, providing it follows the rules. A number of factors caused this employer to trip up.
Real reason for the dismissal
Firstly, S could prove her boss had previously commented to a colleague that he would “rather make an employee redundant than give her maternity leave”. Secondly, only one other employee had been made redundant during 2009. When the tribunal added all this to the fact that the redundancy only took effect once S told CL of her pregnancy, it formed its own conclusion about the real reason for her dismissal. It awarded over £100,000 in compensation for “sex discrimination”.
Unfortunately, a woman can become pregnant whilst on maternity leave as often as she wishes and you must honour her rights. So if you find yourself in a similar situation – and redundancies are also being considered – you must bear a few points in mind.
Tip 1. An employee on maternity leave has priority over any other employees earmarked for redundancy. This means she must be offered any suitable alternative employment before them (even if she lacks the necessary skills or experience). If a vacancy exists and you don’t offer it to her, any dismissal will be automatically unfair.
Tip 2. Work is suitable if it’s appropriate for the employee in all the circumstances. The terms and conditions offered in the new role can’t be substantially less favourable than her old job.
Tip 3. If there’s no suitable alternative employment, you can dismiss provided you have firm evidence of your investigations; without it an employee could persuade the tribunal that the process was engineered just to get rid of her.
Woman on maternity leave have special rights during a redundancy process; they force you to seriously consider whether there’s any suitable alternative employment for them. If an employer fails to investigate this, the tribunal will conclude it’s a sham process and award substantial compensation.
Tips & Advice Personnel: 03.05.2011