One of our senior members of staff is on maternity leave and due to return to work in six weeks. However, by accident, we have discovered that she is applying for other jobs. We desperately need someone in her role. Can we fire her or, at least, start looking for a replacement?
This scenario, although a difficult one for you as an employer, does not appear to provide suitable grounds for firing the member of staff in question. You might be able to argue that dismissing her was on the grounds of conduct or “some other substantial reason” but you would certainly have a challenge on your hands in terms of convincing a tribunal that it was a fair decision.
In fact, there is nothing in the law that prohibits employees from looking for alternative jobs, although were they to do so during working hours, and/or this had a negative impact on their performance, there might be grounds to take disciplinary action.
In your situation, there is also the risk that the employee would view any disciplinary action (including dismissal) as an act of sex discrimination. This could leave your business exposed to the costly process of defending a discrimination claim before a tribunal.
The appropriate first step, therefore, would be to approach the member of staff and simply ask her about her intentions once she returns to work. There could very well be a suitable explanation, or you might be able to persuade her to stay in the business. Because she is a senior member of staff it is not unlikely that her notice period will be substantial. In that case, you should have ample time to source a replacement should she hand in her notice.
However, looking for a replacement before the existing employee has come back from maternity leave, and without her having formally handed in her notice, is risky. This could possibly be construed by the employee as an act of discrimination, or even amount to a fundamental breakdown in trust and confidence between her and you as the employer, entitling her to claim constructive dismissal.
My advice would be to seek clarification over the employee’s situation and take things from there.
Paras Gorasia, barrister, Kings Chambers
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