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MILS Case Study: Maternity LeaveBack

I have an employee who is maternity leave, but her role is now redundant.  Can I treat her the same as another other employee in a redundancy situation? Are there any additional areas I need to be aware of?

If a redundancy situation arises during the employee’s maternity leave, such that it is not practicable by reason of redundancy for you to continue to employ her under her existing contract of employment, you must offer her any suitable available vacancy that exists with your business.

The offer of suitable available employment must be made before the end her employment under her existing contract, and take effect immediately on the ending of her employment under previous contract

The offer must be for work to be done which is both suitable in relation to the employee, and appropriate for her to do in the circumstances and the terms and conditions of her employment should not be substantially less favourable to her than if she had continued to be employed under the previous contract

You must first establish that it is necessary to implement the redundancy during the period of maternity leave. If that’s the case, and if there is a suitable available vacancy available, it should be offered to the employee.  It will not be enough to merely invite the employee to apply for a vacancy.

You should also ensure that you follow a fair redundancy procedure before making the offer of suitable alternative employment.

All contractual terms (except those relating to remuneration) continue during both ordinary maternity leave and additional maternity leave.  She will therefore accrue statutory and contractual leave in the normal way during maternity leave.

If her contractual hours are reduced on her return from maternity leave (e.g. as a result of a flexible working request), then the amount of statutory holiday entitlement that she will accrue from then onwards will reduce correspondingly (such a change will not, however, affect any holiday entitlement already accrued before the change). If she has moved from full-time work to part-time work she should not suffer a reduction in the right to paid annual leave that she has accumulated, but has not been able to use, while working full-time.

Holiday entitlement accrues each leave year and, generally, must be used within the leave year in which it has accrued. However, ECJ case law suggests that it would constitute sex discrimination if a woman were to lose her statutory annual leave entitlement as a result of going on maternity leave. You should therefore allow the employee to take all her statutory annual leave before going on maternity leave or permit her to carry over her statutory annual leave to the leave year in which she returns to work.

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.

 

 

Posted by Sue Robinson on 06/04/2018