A recent case has confirmed that it is not impossible to dismiss employees who are on or returning from maternity leave.
The employee in question was a part-time sales and marketing manager. Around the time she was due to return to work from maternity leave, her employer called her to a meeting and told her that they had coped without her for a year or so and her work had been absorbed by the three other members of the team. The employer was therefore considering making her redundant. In due course, following several meetings, the employer confirmed that her role was being made redundant. The employee claimed unfair dismissal and sex discrimination, alleging that her dismissal was by reason of her taking maternity leave.
The employment tribunal upheld her claims. While the tribunal considered that a true redundancy was a possibility, the fact that it became clear to the employer during the employee’s maternity leave that they could do without her role led the tribunal to conclude that her dismissal must be on the grounds of her maternity leave or connected with her maternity leave. Thus, said the tribunal, she was made redundant because she had taken maternity leave, and so her dismissal was unfair and discriminatory.
The employer appealed to the Employment Appeal Tribunal (“the EAT”). The EAT determined very clearly that the tribunal either had, or ought to have had, found that there was a true redundancy situation, as the employee’s duties had been absorbed by the three other team members. The EAT also overturned the tribunal’s decision that just because the employer had come to realise that it could do without the employee’s role this meant that the reason for her dismissal was her taking of maternity leave. According to the EAT, since there was a true redundancy situation, this was the real reason for the employee’s dismissal, not the taking of maternity leave. The EAT therefore upheld the appeal and dismissed the claim of sex discrimination.
However, the EAT held that the employee’s dismissal was connected with her maternity leave (because the employer only appreciated that they could do without her role while she was on her maternity leave), and thus it remitted a single question back to the tribunal. Namely, did the circumstances constituting the redundancy apply equally to one or more employees in the sales and marketing team holding similar positions to that of the employee and who were not dismissed. If the employee could demonstrate that they did, her dismissal would be automatically unfair; conversely, if the employer could show that the employee’s role was distinct from the other three employees, the dismissal would not be automatically unfair.
While this is a comforting decision for employers, it is nevertheless a reminder that even a genuine redundancy of an employee on or returning from maternity leave is not without its difficulties. Employers should ensure that any redundancy can demonstrably be shown to be wholly unconnected with maternity leave, and if it is connected (as in this case) that the reason for selecting that employee is that their role is distinct from other positions which could have been considered for redundancy. The selection of the correct pool therefore takes on an increased significance.