Maternity Cover Arrangements

    Acting up to cover maternity: When hiring maternity cover employees, there is still the risk that an unfair dismissal claim could be made when ending the arrangement, if the correct procedure is not followed, especially if an employee is moved into a role to cover maternity as they may have 2 years’ service. If the correct procedure is followed, the employer should be able to show a dismissal is fair and for ‘some other substantial reason’. We recently dealt with this challenging situation. When hiring an employee for maternity cover, s106 of the Employment Rights Act identifies the following criteria which must be met to ensure that the fixed term contract is ended fairly:

• When hiring the employee, the employer must clearly inform the employee that their employment will be terminated on the resumption of work by the employee on maternity leave.
• When confirming the end of the fixed term contract, the employer must confirm that the reason for this is in order to make it possible for the other employee to return to work.

In the case of Victoria & Albert Museum v Durrant [2011], the Employment Tribunal made it clear that the wording when communicating this to the employee covering the position must be ‘clear and unambiguous’. In this case, Mr Durrant was hired to cover a maternity position and was dismissed when the employee on maternity leave returned to work. As the wording in his offer letter was not clear, Mr Durrant was successfully able to argue he had been unfairly dismissed, by being made redundant when a genuine redundancy situation did not exist.