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A woman who only takes OML is entitled to return to work in the "same job in which she was employed before her absence". However, what if this is simply not possible, for example the business has changed significantly due to COVID-19 and the employee's role has changed substantially (for example, a large part of her workload has disappeared). It could be argued that the employee is redundant. But what if the employer does not want to dismiss the employee and wants her to continue in her reduced role? Will the employer still be liable under the MPL Regulations?
An employee has a right, when returning to work before the end of ordinary maternity leave (OML) to return to the "same job in which she was employed before her absence" (regulation 18(1), MPL Regulations). If the employer fails to meet this duty the employee will potentially have a claim as set out below.
A caveat to the above is if a redundancy situation has arisen during the employee's maternity leave. This will depend on the particular facts, on which we are unable to comment. Where "it is not practicable by reason of redundancy" for the employer to continue to employ her under her existing contract, the employee is entitled to be offered a suitable alternative vacancy (where one is available) to start immediately after her existing contract ends (regulation 10, MPL Regulations). What amounts to a suitable alternative vacancy would also depend on the particular facts. However, generally where there is a large reduction in workload (and presumably, as a result, hours and pay) the amended role would be unlikely to meet the definition of suitable alternative employment in regulation 10(3). The employer may decide to offer the reduced position to the employee in any event, on the understanding that the employee may refuse to accept it and treat herself as constructively dismissed and bring a complaint of unfair dismissal. Furthermore, even if the employee accepted the (presumably) unsuitable offer, she could bring claims of unlawful detriment and sex discrimination if the change in job or terms was because of her pregnancy or maternity leave.
If there is a genuine redundancy situation this would need to be looked at holistically that is, the employer would also need to consider whether a selection pool is required. If a number of employees now carry out the work or if that work now forms a large part of anyone else's role (and the employee on maternity leave could equally carry out any of those roles), it might be required to place all the employees in a pool and apply fair selection criteria. It may be that another employee currently at work is selected for redundancy, in which case the employer would need to make arrangements to cover for the employee on maternity leave until her return. If a fair procedure is not followed, automatically selecting the employee on maternity leave for redundancy may give rise to the risk of claims for ordinary unfair dismissal, automatically unfair dismissal and pregnancy and maternity discrimination.
If the employee's role is not redundant but there is a proposed change of terms and conditions, the employer would need to seek to agree the changes to the terms and conditions in the usual way (bearing in mind the inherent discrimination risk identified above). The employee may not be inclined to accept detrimental terms but it is possible that the employee would accept them if the alternative is redundancy and they do not wish to change employers in the current climate. The employer would need to bear in mind that if the employee did not agree the changes they could resign and (subject to the usual requirements) claim constructive unfair dismissal and pregnancy and maternity/sex discrimination, as well as a claim under the MPL regulations. The employee could also be expressly dismissed (as opposed to constructively dismissed) for redundancy if she refuses the employer's offer but that dismissal may be unfair/discriminatory.
The employee could also seek to argue that the reduction in hours amounted to a redundancy so they were entitled to a redundancy payment (although note that the case law in this area remains unclear).
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