In these difficult financial times women who are taking periods of maternity leave are returning to find that their jobs have disappeared. I have come across this in two different contexts in the last few weeks with one lady finding that her sales territory had doubled whilst she was on additional maternity leave (AML) and the other who was simply made redundant after her AML ended.
It seems to me that a lot is made of the special position of women returning to work in the press but surely there is not a lot you can do as a woman returning to work when your job has disappeared? Or is there?
It is a relatively painless economy not to cover work during an employee’s maternity leave but what happens when the employee wants to come back to work. The employer will be faced with trying to take the employee back where there is in reality no job.
Extra caution has to be exercised as what looks like a cut and dried redundancy for the returnee is in fact an act of discrimination. There is a substantial risk that the reason for the employee not having a job is because that employee was on maternity leave. The employer has not bothered with following a redundancy selection procedure as the returnee self selected by not being on site. A Tribunal is going to look long and hard at where the work has gone and if other employees have taken on the work.
An added difficulty arises where a vacancy which might have been appropriate has been filled during the AML as the regulations make it clear that the returnee has priority over other employees.
If the previous job has disappeared then the returnee is entitled to be offered a suitable vacancy. Bear in mind that this offer must take into account that the returnee has a new baby and the offer should be as near as possible to the job that she left.
In short an employer’s use of maternity leave as an economy is in many cases short sighted and stores up problems for the business. If there is a redundancy situation whilst the employee is away on maternity leave then this should be addressed at the time and not left to be cleared up when the employee returns. The risks are obvious and more importantly it may prove impossible to undo the situation on the employee’s return!
I have set out below Reg 10 of Maternity and Parental Leave etc Regulations 1999. I have also inserted a link to the case Blundell v St Andrews Primary School in the Employment Appeal Tribunal in 2007 a case dealing with offers of alternative employment to a returnee from AML.
10 Redundancy during maternity leave
(1) This regulation applies where, during an employee's ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment.
(2) Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with paragraph (3) (and takes effect immediately on the ending of her employment under the previous contract).
(3) The new contract of employment must be such that—
(a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and
(b) 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 the previous contract.
Blundell v St Andrews Primary School:
http://www.bailii.org/uk/cases/UKEAT/2007/0329_06_1005.html
Peter D
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