Redundancies linked with maternity leave

At the end of October, a headline in the legal press caught my eye because it involved the firm Dentons, which happens to be the world’s biggest law firm but obviously also shares my name, albeit it was in the news for all the wrong reasons.  They are about to be prosecuted by the solicitor’s disciplinary tribunal having made a member of staff redundant whilst she was on maternity leave.

The employee called Hale has won a claim of sex discrimination and unfair dismissal in the Employment Tribunal in December 2017.  Judge Martin Warren acknowledged that there was a genuine redundancy situation but felt that “the principal reason that Mrs Hale was selected and therefore dismissed was that she had been absent from work on maternity leave”.  This chimes with me because I regularly take phone calls from ladies on maternity leave who have been notified that their position is redundant.

The first thing that I always query in such scenarios is, how can the employer claim that there is a redundancy scenario when somebody is on leave at that point in time, when there is no way of knowing what the position will be when somebody is due to return?  For example, somebody else may have resigned at that point, somebody else may be on long term sick, a new vacancy may have arisen elsewhere. There are lots of things that can have happened to have changed the landscape and mean that the lady does not actually need to be made redundant.

Whilst I accept that sometimes it is only when somebody is not there, and you have to find an alternative and cope, that you learn that you can do so.  The same often happens when somebody is on long term sick.  This doesn’t mean that there is no redundancy situation.  However, often what I see is the lady on maternity leave being the one who is selected for redundancy, when she is just one of a number of people who perform the same task and there is a reduced need for staff to do that task.  In this situation a pool of selection is necessary and an employee on maternity leave should not be the one who is automatically selected – their maternity status should be ignored entirely.

Plus, even if they are selected the law gives the person on maternity leave the right to any alternative employment which is available. This can mean the female employee trumping other staff who are not on maternity leave to the post that is left.