Scrase Law Employment Solicitors

Was dismissal of an employee on maternity leave discriminatory?

Pregnancy or maternity discrimination happens where an employer treats a woman unfavourably because of her pregnancy or because she has exercised her right to maternity leave.  An employee on maternity leave has the right, if she is at risk of redundancy, to be offered any suitable alternative vacancy in preference to other candidates.  Failure to do so can lead to a claim of automatic unfair dismissal. 

The background

Ms B was employed as a Financial Accountant working 40 days per year, largely from home.  When she started her employment, she was pregnant.  During her maternity leave, the employer’s Chief Executive undertook a review and decided that a new full-time role of Finance Manager and Business Analyst should be created, which included Ms B’s duties but also other strategic duties.   

The employer contacted Ms B and told her that her role was at risk of redundancy because of the decision to amalgamate her role with the new role.  She was invited to apply for the new role and also given a draft settlement agreement to consider. Ms B did not apply for the role.  She was dismissed during her maternity leave. 

Ms B issued claims in the Employment Tribunal for direct sex discrimination, pregnancy and maternity discrimination and automatic unfair dismissal. She argued that the redundancy was a sham, and that the new job was a suitable available vacancy that she should have been offered as an alternative to redundancy.

The Tribunal rejected her claims.  It found that the new role encompassed her previous role, but in every other respect was completely different.  It found that there was no suitable alternative vacancy and rejected her argument that the redundancy had been a ‘device’ to get rid of her because she was on maternity leave.  Ms B appealed to the Employment Appeal Tribunal (EAT).

Discrimination and unfair dismissal?

The EAT found that it was Ms B’s case that there was no redundancy and that her duties, in reality, were not expected to cease or diminish.  She argued that the employer still had the same requirement for employees to carry out the same financial accounting work.  Alternatively, if there was a redundancy, her dismissal was unfair because she was not offered the new post as a suitable alternative vacancy.

The EAT found that to decide whether Ms B’s claims should succeed, the Tribunal had to first decide whether there was a genuine redundancy situation.  In this case, the Tribunal had not done so.  As the EAT noted, the fact that there is some form of re-organisation does not necessarily mean that there is a redundancy.  It might have been open to the Tribunal to find that this was a genuine redundancy.  However, it had not addressed the question of whether the employer’s requirements for employees of to carry out work of a particular kind had ceased or diminished.  As the Tribunal had not asked itself the necessary questions, its decision was unsafe.  The claim was sent back to the Tribunal to reconsider.

Comment

Whether a dismissal is by reason of redundancy is a question of fact for the Employment Tribunal to decide.  However, deciding whether there is a genuine redundancy situation is sometimes overlooked by employers. There is a specific definition of redundancy in employment law, and it is important that this is considered in any restructuring exercise.  Where there is a genuine redundancy, and there is a suitable alternative vacancy, an employee on maternity leave has the right to be offered that role in preference to any other employee or candidate.  This protection continues to apply for 18 months from the child’s birth. 

Ballerino v The Racecourse Association Ltd

28 June 2024

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