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Can I be made redundant on maternity or sick leave?

What happens if, during an employee’s absence on maternity leave, an employer discovers that an employee had not been doing the work they should have been doing or, alternatively, finds that their maternity cover replacement is much better at the job?

Would this give grounds for an employer to fairly dismiss the employee by reason of poor performance or, alternatively, would such action be an act of unlawful maternity discrimination?

This issue was considered by the Employment Appeal Tribunal in the case of Rees v. Apollo Watch Repairs plc 1996. In that case, Ms Rees’ employers dismissed her when her boss found her replacement more efficient and acceptable than her. The Employment Appeal Tribunal accepted that the immediate cause of Ms Rees’ dismissal was that her employer found her maternity cover replacement to be more efficient and acceptable. However, they went on to conclude that the underlying reason for Ms Rees’ dismissal was her absence on maternity leave. This was seen to be the effective cause of her dismissal and therefore the Employment Appeal Tribunal concluded the dismissal was an act of sex discrimination. The Employment Appeal Tribunal commented that they were fortified in reaching their conclusion by the policy behind sex and maternity discrimination legislation. It was held 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 had arisen solely as a result of her pregnancy and therefore of her sex.

The same principle would, one would have thought, be equally applicable to a scenario where an employer discovered, during an employee’s maternity leave, that they could “get by” without that employee and therefore decided there was a redundancy situation.

However, there has been much debate as to whether Ms Rees’ case would have been decided differently following the implementation of the Equality Act 2010. Since the implementation of that Act, Employment Tribunals have moved away from a “but for” test for direct discrimination (i.e. an argument that but for an employee’s maternity leave, an employee would not have been dismissed either by reason of poor performance or redundancy). Instead, Employment Tribunals have now moved towards a “reason why” test (i.e. by focusing on what an employer’s conscious or subconscious reason was for treating the employee unfavourably).

This change of approach by Employment Tribunals is illustrated by the recent decision of Charlesworth v. Dransfields Engineering Services Limited – a case concerning discrimination arising from disability. In that case, the Employment Appeal Tribunal held that although an employee’s two month absence from work for cancer treatment was the context for his employer deciding that his role was redundant, this was not causative of his dismissal such as to constitute unlawful disability discrimination. This was because the Tribunal had been entitled to conclude that the employee’s absence merely allowed the employer to identify something which it might very well have identified in other ways, namely its ability to manage without him, and in that sense, was not an operative cause of his dismissal. It was accepted that there was “some link” between the employee’s absence and his dismissal, in that his absence gave his employer an opportunity to identify the ability to manage without him. However, this was not the same as saying that the employee was dismissed because of his absence and therefore absence was not the effective or operative cause of his dismissal.

Notwithstanding the Employment Appeal Tribunals’ decision in Charlesworth, it is fair to say that there is still some apparent conflict in legal opinion in this area. Another Employment Appeal Tribunal Judge had commented on an apparent tension between previously decided cases in this area. Furthermore, the Equality and Human Rights Commission’s own guidance on pregnancy and maternity discrimination makes it clear that a woman’s pregnancy or maternity leave only needs to materially influence an employer’s conscious or subconscious decision making for the unfavourable treatment to be discriminatory. The example it provides is where an employer dismisses an employee on maternity leave shortly before she is due to return to work, because the locum covering her absence is regarded as a better performer. Had the employer not been absent on maternity leave, she would not have been sacked. The EHRC confirms their view that her dismissal is therefore unlawful, even if performance was a factor in the employer’s decision making. The case is similar, of course, to the Apollo Watch Repairs case referred to above.

Given the apparent conflict in a number of decisions in discrimination law in this area and particularly given the comments of the Employment Appeal Tribunal in Rees v. Apollo Watch Repairs plc to the effect that the protection of equal opportunities is paramount, one might expect this matter to be considered by the Court of Appeal at some point in the future.

For specialist support and guidance surrounding redundancy while on maternity or long-term sick leave, please do not hesitate to contact Alan Lewis of our Employment Department on 0161 837 6807, or email us on enquiries@lindermyers.co.uk

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