Weekly dilemma

One of our female managers is on maternity leave. Maternity cover is being provided by a female temp (agency worker). The temp is highly efficient, so we would prefer to employ the temp rather than bring the permanent employee back into the role. Can we change the original role and make the permanent employee redundant with a view to keeping the temp on?

An employee who takes ordinary maternity leave has the right to return to the same job in which she was employed before her maternity leave. An employee who takes additional maternity leave is entitled to return either to the same job or, if that is not reasonably practicable, to another job which is both suitable (with equivalent status/salary/pension rights etc) and appropriate.

Case law dictates that a woman is protected from suffering a detriment by virtue of the fact that she is pregnant, and the Maternity and Parental Leave etc Regulations 1999 reinforce this. A pregnant woman does not need a comparator to establish sex discrimination – she must simply show that her employer’s actions were because of her pregnancy.

If you dismiss the employee on maternity leave and replace her with the temp, you are likely to face a successful claim for direct sex discrimination. Your employee will be entitled to claim for loss of earnings and injury to feelings which can result in substantial and uncapped compensatory awards.

Undoubtedly, your employee will also claim unfair dismissal, because her dismissal was for reasons relating to her pregnancy. You could argue that the employee’s original role is redundant and the temp is employed in a new, fundamentally different role. However, to successfully rely on redundancy as a fair reason for the dismissal, you must establish that the redundancy was genuine, and offer the returning employee any suitable alternative position.

The answer, therefore, is no – you cannot keep the temp instead of the employee on maternity leave. A tribunal will regard this as direct sex discrimination and unfair dismissal.

Each week we ask the experts to answer your legal dilemmas. If you have a legal question or dilemma, e-mail dawn.spalding@rbi.co.uk

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