In SG Petch v English-Stewart the EAT considered a fairly common workplace scenario. When the claimant went on maternity leave, she was not replaced but her three colleagues covered the work between them. So the employer discovered that it had less need for employees to perform a particular function ie there was a redundancy situation. When her maternity leave ended, the claimant was dismissed as being redundant. The employment tribunal said that her dismissal was automatically unfair – she had been dismissed because she had taken maternity leave.
The EAT has now allowed the employer’s appeal. The law in this area is quite clear. It recognises that a redundancy situation may arise when an employee goes on maternity leave. However, the employer must follow a proper redundancy procedure. If there is more than one employee in the ‘pool’, it must demonstrate that the claimant was not selected for redundancy because she took maternity leave.
Point to note:
• Redundancy is potentially a fair reason for dismissal, but in all cases the employer must also show that it followed a fair procedure – meaning a fair selection process, proper consultation and consideration given to whether there are any alternatives to redundancy that could be offered. In this case, having a fair selection process would mean having a matrix that could be applied to all four members of the ‘pool’ ie disregarding the fact that one of them has taken maternity leave.
Other articles related to the UK Employment Law Update for Janaury 2013:
> Termination date: Employee must accept employers repudiation in order to terminate contract
> Employee's duty of fidelity while on garden leave
> Victimisation: Was offensive comment a 'protected disclosure' or racist act?