Vicky Schollar, solicitor at Blake Lapthorn, looks at how employers should handle maternity leave cover, particularly the issue of what should happen when a period of maternity leave ends.
When an employer needs to recruit someone temporarily to cover the work of an employee absent on maternity leave, it is vital that the job offer and contract are in writing and that the employer makes it clear that the role is temporary, for a fixed term and to cover maternity leave. The fixed-term employee’s terms of appointment should be no less favourable than those offered on a permanent basis.
Once employed, the employee covering maternity leave has the right not to be subjected to any detriment because they are on a fixed-term contract.
What are the rights of the returning and fixed-term employee once maternity leave comes to an end?
The returning employee has the right to return to the same job that she was employed in before her maternity leave started, unless this is not reasonably practicable – for example, because of a restructure (although special protections may apply) and she is returning during or at the end of her additional maternity leave. In order to meet this legal obligation to allow the absent employee to return, the employer will usually be able to dismiss the covering employee for “some other substantial reason”.
There is, however, a special provision under s.106 of the Employment Rights Act 1996 which will strengthen the employer’s case that there was a fair reason, providing the following two conditions are satisfied:
- the employer has informed the replacement employee in writing at the time of recruitment that their employment will be terminated when the employee who is absent because of pregnancy or childbirth (or, equally, adoption or additional paternity leave) returns to work; and
- the dismissal is to enable the absent person (on maternity leave) to be given work.
While this provides the employer with a fair reason for dismissal, the employer still needs to show that it acted reasonably – for example, by conducting a fair procedure and investigating alternative employment.
While many employees hired to cover maternity leave will not have enough service to bring an unfair dismissal claim, it is still advisable for employers to comply with this provision and follow a fair procedure to help ward off allegations that the dismissal was for another reason where no minimum service is required (eg whistleblowing, or discrimination). This supports the employer’s case that dismissal was purely because the maternity leave ended. It will also assist where the employee covering maternity leave has accrued two years’ service, having continuously worked for the employer in a previous role.
What if the employee on maternity leave does not want to return to work?
In this scenario, the employer will not be able to rely on s.106 to terminate the covering employee’s contract, as the reason for termination is not to allow the absent employee to return to work. Therefore, if a permanent replacement is to be sought, the covering employee will need to be informed of the vacancy to comply with fixed-term employees’ rights.
There is no absolute right for a covering employee to be offered the permanent role. However, there is a risk of that employee arguing there was a discriminatory or other reason for not being offered it. If the employee has two years’ service, to avoid the risk of an unfair dismissal claim, the employer will also need a fair reason for not offering the job to the covering employee. It will be difficult to cite work or conduct issues if none have been raised previously; discipline and performance management therefore remain important even for covering employees.
Can the employer retain the covering employee in preference to the returning employee if the covering employee is better at the job?
No. This is likely to cause problems as the returning employee has the right to return to the same job and should not suffer a detriment as the result of being on maternity leave. If the employer refuses to allow the permanent employee to return to her role it runs the risk of claims for unfair dismissal and/or discrimination based on maternity and/or sex.
Employers need to ensure that they are aware of the rights of covering employees and those returning from maternity leave from the start of the recruitment process so that the process of recruiting, retaining and dismissing can be carried out with minimum risk. Giving some thought to this and clearly communicating the terms of the maternity leave cover will reduce the risk of a claim.