Myth: We can fairly dismiss an employee returning from maternity leave if our customers prefer the temporary replacement
Reality:
No you can’t – any dismissal is likely to be unfair and discriminatory!
The starting point is that women have the right to return after maternity leave to the job that they were doing before they went on leave.
During the first six months of maternity leave this is an absolute right – so you have to allow them to return to their original role. After six months the right is diluted slightly, and if you can show that it is not ‘reasonably practicable’ for them to return to their previous job, then they have the right to return to a different role, which must be:-
- Suitable and appropriate for them (taking account of things like experience, seniority and skills); and
- On terms and conditions no less favourable than those which would have applied had they not taken maternity leave.
The fact that you and/or your customers may prefer the maternity leave cover or think s/he is doing a better job, does not make it ‘reasonably practicable’ to force the woman on maternity leave to return to another job. In reality this exception to the general right to return to the pre-maternity leave role is only likely to apply if there is a reorganisation.
In practice, the only circumstances in which you can fairly dismiss a woman on, or when she returns from, maternity leave, is if there is a genuine redundancy situation and she has been fairly selected* for redundancy; or if there has been gross misconduct – which is very unlikely given that she won’t have been at work!
It doesn’t matter if your temporary replacement is actually better at the job, more efficient or has improved your turnover. In all but exceptional cases, there is no excuse for refusing to allow the employee to return to her former job.
If you dismiss a woman for this reason, or force her into another role, she will be able to bring an employment claim against you for direct pregnancy and maternity discrimination. Compensation for these types of claims is uncapped and can be substantial.
If you dismiss your employee she may also claim that her dismissal is automatically unfair and she can bring this type of claim even if she has worked for you for less than two years.
The situation can be more difficult to handle if your employee was working for one of your customers and they don’t want her back because they prefer the temporary replacement. You can’t simply accept this request and must take robust steps to challenge it as follows:
- Explain to your customer that your employee has the right to return to their old job and ask them to reconsider. If you do this verbally, confirm your request in writing.
- Check the terms of the commercial agreement between you and your customer. Does it contain a clause prohibiting the client from refusing to accept any employee if that amounts to discrimination? If so, make sure that you raise this with them.
- If your client will not change their minds, you must speak to your employee about this before she returns from maternity leave. Do not wait until she returns to work and then suspend her.
- Look for suitable alternative roles the employee could do within your organisation and offer these to her. Although the terms and conditions should be broadly comparable to her previous role, do not assume that a role is unsuitable (even if it looks to be). It is much better to give the employee the option of accepting a role.
- Do not make the woman apply for any suitable alternative jobs, or subject her to a competitive job interview. If the job is suitable and appropriate, offer it to her.
Taking these steps will not necessarily prevent the employee from bringing successful claims against you but it will, potentially, reduce the amount of compensation she could receive.
Please note: the principles set out in this answer apply equally to women and men taking adoption leave or shared parental leave.
*Please refer to our mythbuster: You can’t make a woman redundant while she is on maternity leave for more information about this.
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January 2018
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