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Have you ever read the employment law stories that have made the headlines and wondered, ‘is this for real?’ or ‘how did the employer expect to get away with that?’ (or even, ‘could I get away with that?’). We take a look at the stories making the news and explain how we think these employers are, or should be, applying employment law to the information reported.
Job no longer exists
When Dr Katie Lidster went on maternity leave, she had worked for UK Research and Innovation (UKRI) for 7 years. Her daughter was born two months early by caesarean section and was in neonatal care for 53 days. Dr Lidster was diagnosed with post-traumatic stress disorder but felt well enough 7 months after the birth to contact UKRI to discuss her return to work.
Dr Lidster’s line manager told her it would not be appropriate to return to her position and it did not exist anymore. She was offered a role with fewer responsibilities for 4 days a week. 5 weeks later, a colleague sent her a copy of an internal advert for the role she had been told no longer existed, which was subsequently given to Dr Lidster’s maternity cover. Dr Lidster resigned.
Dr Lidster said: “They had added one word to the job description and one responsibility, which I had been doing anyway”.
Is it wrong for a role to disappear and to offer a different role when on maternity leave?
You might be thinking that nobody wants to deliver bad news, but difficult decisions have to be taken. When the employee (affected by the decision) has been dealing with difficult personal circumstances, decisions should be delayed until things have improved for the employee.
Or, you might be thinking an employee’s personal circumstances are not a relevant factor and the needs of the business come first.
The answer, in fact, lies somewhere in between these two opposing views.
There’s nothing wrong with a redundancy exercise taking place during an employee’s maternity leave and an employee on maternity leave is afforded special protection; where a suitable alternative role exists, it must be offered. However, the issues here are: was there a genuine redundancy situation; and was a fair and non-discriminatory process adopted?
On the basis of what has been reported, this wasn’t the case of redundancy arising from a business or workplace closure, but there also doesn’t appear to be a reduced requirement for employees to do work of a particular kind. Of course, the requirements of the business have to be judged by the employer and one or more jobs can be created at the same time as one or more are disappearing. However, simply tinkering with a job description to create the illusion of a redundancy doesn’t cut the mustard.
And while the requirements of the business dictate whether a genuine redundancy situation arises, an employee’s personal circumstances will dictate, to an extent anyway, how the redundancy process should be conducted. For example, to delay telling an employee about the proposal or to otherwise not conduct a meaningful consultation simply because they are on maternity leave is maternity discrimination. Or to decide a vacancy is not suitable alternative employment because they can’t or don’t want to cut short their maternity leave, or their maternity cover is a better fit for the role, is maternity discrimination. A failure to adapt the timing or manner of the consultation process in light of an employee’s personal circumstances, for example, allowing for a longer consultation period, more meetings or a hybrid of consulting in person and in writing, could amount to sex, maternity and/or disability discrimination.
If an employee is told that a return to their role is not appropriate and the reason is connected with their health without any medical evidence to support this, there may well be a potential disability discrimination claim. Assumptions are dangerous things to make; the action an employer takes (or does not take) because it has assumed PTSD will prevent an employee from coping with the stresses of the job could result in a claim of discrimination arising from disability.
How do I avoid criticism for the redundancy process I adopt?
As I explained when I commented back in August 2020 on the redundancies being made by Debenhams [** can you make this a click through to my blog**], the key is preparation, preparation, preparation. Question everything you do, in good time before you do it, including why is it a redundancy, why is this particular employee affected, why am I consulting at this time rather than that time, why is this not suitable alternative employment or why am I not offering suitable alternative employment and why am I using this selection criteria?
Often, it’s best not to go through the exercise on your own and you should seek out someone you trust – whether that’s someone in the business or an external professional – to offer a view on what you’re proposing to do and even how it might be perceived. Remember, most employment disputes and claims boil down to an issue of perception.
If you need any advice about an employee returning to work after maternity leave, redundancy or disability-related issues, get in touch with Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
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