UK: Redundancy: Maternity Leave Dismissal

Authors: Frances Ross, Ruth Bonino, Corinna Harris, and Sophie Jackson

The claimant, who was employed as a financial accountant, worked 40 days per year. During her maternity leave, the employer created a new full-time role of Business and Financial Analyst, encompassing her duties but also involving other strategic elements. Although she was invited to apply for the expanded role, she was also given a draft settlement agreement which she was invited to accept – and when relations broke down, she was dismissed.

The regulations which applied until April 2024 provided that employees on maternity leave, adoption leave or shared parental leave had priority over other employees at risk of redundancy – having the right to be offered a suitable alternative vacancy where one was available. Failure to comply with this rule could lead to a claim for automatic unfair dismissal.

The tribunal rejected the claimant’s argument that the new role amounted to a suitable available vacancy under this provision because the focus of the job was business analysis rather than financial accounting. As for discrimination, it found that the employer had provided an acceptable explanation for reorganising the business, and that the new role was not a device designed to terminate the claimant’s employment while she was on maternity leave.

The EAT upheld the claimant’s appeal, finding that where the claimant’s role was relatively new (she had only been in the post for four months), the question of whether there was a redundancy could not be answered as a matter of impression. It did not inevitably follow from the reorganisation, or the employer’s requirement for different skills, that there had been a redundancy. In relation to the discrimination claims, the tribunal should have scrutinised whether the employer had shown that there was a non-discriminatory explanation for its treatment of the claimant.

Practical point

The new redundancy protection rules that have applied since 6 April 2024 require employers to offer suitable alternative vacancies to a much wider category of workers who are at risk of redundancy:

• Pregnant employees – from the date the employee tells their employer they are pregnant until their maternity leave starts
• Maternity and adoption leavers – for 18 months from the date of the expected week of childbirth or placement for adoption/date the child enters Great Britain
• Shared parental leavers – for 18 months after the child’s birth or placement, except if they have not taken maternity or adoption leave – in which case they will still be protected during SPL but will need to have had six weeks’ continuous leave to qualify for protection after returning from SPL.

Miss Helen Ballerino v The Racecourse Association Ltd