In a recent employment tribunal case, during the employee’s second period of maternity leave, a significant part of her role was removed and allocated to others. The employment tribunal heard evidence that her employer had decided to “dispense” with the employee once she came back from maternity leave.
A month after returning from maternity leave, the employee was invited to a meeting via a WhatsApp message to discuss removing her role.
The day after the meeting she was told she could be made redundant and that she could apply for another role. The employee refused a final consultation and a days later was made redundant. The employment tribunal found that, based on the evidence, the employer had decided to eliminate the employee’s role while she was on maternity leave to retain the employee who was covering her maternity leave on a permanent basis. The tribunal found that the reorganisation had been carried out in order to structure the department so that the employee’s role could be presented as disappearing. Parts of her role were given to others. However, fundamentally the maternity cover had been taken on to replace the employee and do her job on a permanent basis, with the new position having been created by and for the maternity cover replacement.
To present this as a redundancy, the employer presented the new role as a different role, by paying the maternity cover more. However, the employment tribunal found that this regrading was superficial. There was no genuine redundancy situation. The new role (which the employee wasn’t given an opportunity to apply for) was essentially the same as the employee’s existing role and that the “strategic element” of that role had been overplayed by the employer.
The tribunal found that the principal reason for the employee’s dismissal was that the employer wanted to replace the employee with their preferred employee. As the reason was not a potentially fair reason for dismissal, the tribunal ruled that the dismissal was unfair. Her job remained and she should have been able to return to it, or she should have been offered the new role, which was essentially the same as her existing role.
Furthermore, as the employee was not informed of the organisational changes at the time they happened while she was on maternity leave, nor was she given an opportunity to apply to alternative employment at that time, this amounted to maternity discrimination, as the employer had treated the employee unfavourably due to her taking maternity leave.