Redundancy Situation Identified Due To Maternity Leave: Dismissal Automatically Unfair

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Posted on 16 Jan 2013

The EAT has ruled that where a redundancy situation becomes apparent because an employee is on maternity leave and that employee is selected for redundancy, the dismissal will be connected with maternity leave and automatically unfair.

In SG Petch Ltd v English-Stewart, E was a part-time manager in the sales and marketing department and was one of four employees working in that department.  When she was due to return to work from maternity leave the financial director called her to a meeting and told her that they had managed without her whilst she had been on maternity leave and they were considering making her role redundant.

ES claimed discrimination and that her dismissal was automatically unfair pursuant to Regulation 20(2) Maternity and Parental Leave Regulations 1999 (MPLR).  Regulation 20(2) MPLR provides that an employee is regarded as automatically unfairly dismissed if the reason for dismissal is redundancy, the circumstances constituting the redundancy apply equally to other employees holding similar positions and it is shown that the reason she was selected was connected with her having taken maternity leave.    

The EAT held that since the employer appreciated the need to cut back from four to three employees as a result of ES’s maternity leave, this meant that she was selected for redundancy for a reason “connected with maternity leave” for the purposes of Regulation 20(2) MPLR.  This meant that provided that the rest of Reg 20(2) was satisfied, her dismissal would be automatically unfair. 

The EAT did say that if the employer could show that it could have appreciated the redundancy situation irrespective of the maternity leave, then a connection between the two might not have been made out.  However, the employer in this case had given no such evidence and had expressly stated that "there is a redundancy, and we have appreciated it as a result of your not being here and our being able to cope very well without you".  Employers should therefore try to avoid linking the identification of a redundancy situation with the fact that an employee has been on maternity leave.

The employer in this case did not go through any pooling or selection process but even if it had it would appear that this would not have made any difference as the dismissal would in any event be automatically unfair under Regulation 20(2) MPLR.

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