I have an employee who is shortly to return from maternity leave, however the temporary worker who is covering her role during her maternity leave is much better and I would prefer to keep this employee in the role and move my existing employee into another role or potentially make her redundant. How do I handle it?


Sharon McArdle, Tughans Solicitors, Belfast, writes:


In the case of Rees v Apollo Watch Repairs [1996] ICR466 a female employee was found to have been discriminated against when she was dismissed, for redundancy, but where the real reason was that her employer found that the person who covered her maternity leave was more efficient. It was found that, but for the Claimant’s pregnancy, her replacement would not have been engaged, the comparison between their respective performances would not have been made and the Claimant would not have been dismissed.

The EAT said that “the protection afforded to women on maternity leave would be drastically curtailed if an employer was able to defeat a complaint of direct discrimination by a woman who, during such absence, discovered that her employer preferred her replacement, a state of affairs which has arisen solely as a result of her pregnancy and therefore her sex.”

A woman returning to work after a period of ordinary maternity leave is entitled to return to the job in which she was employed before her absence. An employee who returns to work after a period of additional maternity leave is entitled to return from leave to the job in which she was employed before her absence or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances. A refusal by the employer to permit her to exercise this right will in law constitute an unfair dismissal.

It would seem therefore that if the employee is returning to work after a period of ordinary maternity leave only the employer cannot offer her an alternative job in order to keep the temporary worker in the employee’s job. If the employee is returning to work after a period of additional maternity leave then the employer has slightly more flexibility. However, it is doubtful if a Tribunal could be persuaded that it was not reasonably practicable for an employer to permit the employee to return to her job in these circumstances. The employee’s job continues to exist. The person covering the job during the employee’s maternity leave is engaged on a temporary basis only to cover maternity leave and therefore the employer cannot treat that person’s employment rights in priority to the employee returning from maternity leave.

In the case of Stelfox v West Co Building Components Limited (ET/15083/95), the employer hired a temporary maternity leave replacement for the Claimant, but he proved so good at his job that they made him permanent, as his request, before the Claimant returned to work. They then offered her another job at the same rate of pay. The Tribunal held that the employer had not demonstrated that it was not reasonably practicable to give the Claimant her job back. The employer had failed to even consider whether she should be offered her old job, and had failed to consider any alternative strategy when the replacement employee asked to be made permanent.


Q. Can the employer argue that a redundancy situation has occurred?


The employer may have difficulty in showing that a genuine redundancy situation exists, where it proposes to retain the temporary worker in the role. An employer should be wary of dismissing an employee whilst on maternity leave. Where a woman is dismissed while pregnant or during maternity leave, there will be a prima facie case of discrimination on grounds of sex. The employer will bear the burden of proving that the reason for dismissal was not a pregnancy or maternity related reason.

Further, selection of an employee for redundancy on grounds of or for a reason connected with pregnancy, childbirth and/or maternity leave will lead to a finding of automatic unfair dismissal.

The employer also needs to bear in mind that an employee who is selected for redundancy and who is on maternity leave has an automatic entitlement to be offered a suitable alternative vacancy (where one is available), to start immediately at the end of her maternity leave. The employee must be so offered in priority to the temporary worker engaged to cover her maternity leave. Failure to comply with this obligation could lead to a finding of automatic unfair dismissal and unlawful discrimination on grounds of sex.


Q. Can the employer make the employee redundant after she has returned from maternity leave?


At this stage, the employer may still have difficulty in showing a redundancy situation as it proposes to retain the temporary worker and it seems that the role the employee carried out is still required. If selected, the employee may still seek to allege that she has been selected on the grounds that she has taken maternity leave and therefore her selection is unfair on the grounds of sex and that she has been treated less favourably on grounds of sex. A further difficulty for the employer is that, in order for a redundancy dismissal to be fair, the employer must normally have considered all other options before carrying out dismissals on grounds of redundancy. This would include terminating the engagement of temporary staff, such as the temporary worker whom the employer prefers.

The employer could consider retaining the temporary worker in another role. If there are concerns about the performance of the employee returning from maternity leave then this could be monitored following return to work to see whether such issues continue to exist. If they do continue to exist, a reasonable time should be allowed for the employee to adjust to returning to work before investigating with the employee any causes for performance issues.