The Employment Appeal Tribunal (EAT) has issued a sobering reminder to
employers not to ‘count out’ employees who are on maternity leave by failing to
notify them of internal vacancies.
In Paul v Visa International Service Association, the EAT ruled that Visa’s
failure to notify an employee on maternity leave of an internal vacancy
amounted to a breach of mutual trust and confidence, and the employer was also
found liable for victimisation.
Jonathan Chamberlain, partner at law firm Wragge and Co, said the ruling
showed that employers should keep communicating with staff on maternity leave.
"Too often, maternity leave means ‘out of sight, out of mind’. Women on
maternity leave are still part of an organisation, even if they are not at
their desks," he said.
The EAT heard that Visa failed to notify Paul of two vacancies while she was
on maternity leave, even though she had previously expressed an interest in
that area of work.
She subsequently resigned and was told that she should reconsider her
resignation as if she left, the employer would require repayment of her
contractual maternity pay.
The EAT’s findings
The EAT upheld the tribunal findings that:
– Paul had been constructively dismissed as Visa had
fundamentally breached the implied term of mutual trust and confidence
– The dismissal was automatically unfair as relating to
pregnancy
– The failure to notify Paul of the vacancy was a deliberate act,
amounting to a detriment, upholding the complaint of victimisation
