13th April 2017

The Replacement: The Cause, The Claws & The Flaws

Did any of you catch the BBC’s latest drama, The Replacement?

It started off as the same old story. Ellen becomes pregnant. Ellen identifies her maternity leave cover post, Paula. Paula commences her duties prior to Ellen finishing up and seems like the perfect hire – enthusiastic, personable, super-competent. In fact, Paula takes to her myriad of duties much like Superwoman.    And that is when Ellen begins to worry that Paula has another agenda.

Ellen begins to suspect that Paula is after her clients, her job, her colleagues, her friends and even her baby. Before long, Paula has sharpened her claws. And before the first episode had even finished, every beat in the female psycho-thriller playbook had been pulled out of the bag.

Without giving too much away, there are accusations of baby-stealing, pill-popping and being “pushed” down a set of stairs. And the expression “hot-wiring airbags” will never seem the same again.   However there are some major flaws with The Replacement.

Without being a stereotypical, know-it-all employment lawyer, my three key flaws all relate to Ellen’s employer and, more specifically, her creepy boss, David Warnock:

1. An employer is not permitted to allow an employee to work during the two weeks’ (extended to four weeks for some factory/workshop workers) commencing the day on which child birth occurs. An employer who does so is guilty of an offence. How long was Ellen actually on maternity leave for? When Ellen had the fateful first meeting back with the equally creepy client, Vernon, he makes the point that Ellen (who had already returned to work, albeit to hack into Paula’s computer and set up a fictional client with the elusive Georgia) had barely been back for four weeks. Whether or not Ellen was actually permitted to use her statutory two weeks’ leave is probably insignificant given the fact that she was clearly back to work much sooner than was reasonable in the circumstances. Surely an employer with half an ounce of common sense could tell that she came back far too soon.

2. Similarly shortly after the birth, Ellen visits the office to meet with Creepy David. “I don’t want you to put yourself under any pressure to return to work because of Kay”, says David. “No”, assures Ellen, “I want to be here.” Ellen proceeds back to work, albeit again that “work” involves creeping on Paula’s daughter’s Facebook account and spying on her boss and maternity leave cover, Paula. An employee is entitled to work for up to 10 KIT (“keeping in touch”) days during maternity leave, without bringing their maternity leave to an end. Were these KIT days used? Probably not.

3. Lastly, when Ellen returned to work, she was sidelined from her old project, the library. Ellen asked about the library project and was told by her boss, “Paula’s handling it. Vernon has got used to her. That’s all.” This was the same project about which there had been a debate – skylight or no skylight? Do you remember skylight-gate? When Paula first opposed Ellen’s idea about the skylight, she later reinstated the idea (only to discover her colleague’s dead body being shoved through the skylight). The law is clear that an employee who returns to work within 26 weeks of maternity leave is entitled to return to exactly the same job, on the same terms and conditions. Creepy David had obviously never heard of that and Ellen’s request to return to the library project went out of the window (or should that be skylight?).

So basically I can forgive Ellen for turning into MacGuyver and hot-wiring these airbags as I presume that architects must have a basic engineering knowledge and Ellen must have completed her motor electronics course in an earlier episode….

And I can even forgive Paula for pushing her colleague out of the window – let’s face it, line managers can be difficult. After a dramatic showdown involving a kidnapped baby, sleeping pills and smashed window screens, she confessed all and was led away in handcuffs. She got what she deserved.

However it is Creepy David who cannot be forgiven. So he likes group hugs with his female colleagues. And he makes inappropriate remarks about his female colleagues’ appearance. But as far as employment law goes, the flaws are unacceptable.

I am away to watch something more realistic now…. like The X-Files.

Simon Allison
Partner – Employment Law
@EmpLawyerSimon
www.blackadders.co.uk

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