Employers need to take precautions to safeguard against potential claims
brought by staff on maternity leave.
Particular issues relating to the amount of contact an employer should have
with its staff while they are on maternity leave have been propelled into the
limelight with the Employment Appeal Tribunal’s recent decision in the case of
Visa International Services Association v Paul (2004) IRLR 42. It expressed the
view that an employer could be liable to an employee for breach of contract and
direct sex discrimination.
The employer in the case had failed to notify the employee of vacancies that
had arisen while she was on maternity leave. The tribunal ruled that this was a
breach of the implied term of trust and confidence, and was also sex discrimination.
An employer wanting to minimise the potential for these types of claims
might wish to consider holding a ‘maternity leaver’s interview’ before the
worker’s maternity leave begins.
Employers should be aware that an employee’s period of continuous employment
is not broken by absence from work on maternity leave or otherwise on account
of pregnancy or childbirth. Her contract will continue to run, although she
will not be bound by any terms which are inconsistent with her being on
maternity leave. Hence, the ‘maternity leaver’s interview’ would be an ideal
opportunity to discuss any matters the employer feels may affect either the
employer or the employee during the maternity leave period.
It would also allow the employer to discuss the degree of contact expected
by the employer and employee. Some of the primary areas that lead to claims by
employees can be addressed at this interview as well. These could include
agreeing with the employee the re-scheduling of performance or appraisal
meetings should they fall due during the maternity leave period; and ensuring
that the employee is informed of any fundamental changes relating to their
contract and/or rate of pay. The employer could consider including a section
relating to staff due to take maternity leave and the procedures involved in
their staff manual or policy handout.
Further helpful measures could include keeping the employee informed of any
job vacancies, social events, and aspects relating to their employee benefits,
as well as pay and any other matters directly associated with the employee. Any
facts likely to affect the employee or her job when she returns to work should
also be communicated to her – for example, any redundancy or restructuring
Employers must remember that communication is the key. After all, ‘It’s good
By Alan Cohen, director, Ashby Cohen Solicitors