During maternity leave women benefit from a period of heightened protection in relation to a number of situations including redundancy. If an employee is selected for redundancy on grounds relating to her maternity leave, the dismissal will be automatically unfair. Under the Maternity and Parental Leave etc Regulations 1999 ("MPL Regulations") special provisions apply where during an employee's maternity leave it is not possible for an employee to return under her existing contract of employment by reason of redundancy.

In this situation if there is suitable alternative employment with either her employer, his successor or an associated employer this must be offered to the employee before her employment is terminated under her existing contract. This obligation requires more than giving the employee the opportunity to apply for the job, the job must be offered to her (Jones - Fraser v First Rung Limited).

The requirement to offer suitable alternative employment to an employee on maternity leave is absolute and therefore it must be offered to that woman in preference to any other employee who is similarly affected. If the alternative role is not offered the redundancy becomes automatic unfair dismissal.

A suitable available vacancy is one which is suitable and appropriate for the employee to do in the circumstances, and the terms and conditions are not substantially less favourable than if she had continued to be employed in her original role.

Given the above, it is understandable that the employer in the recent Eemployment Tribunal ("ET") case of De Belin v Eversheds Legal Services Ltd would approach a redundancy situation involving an employee on maternity leave cautiously.

In the above case the claimant was placed in a redundancy selection pool along with his colleague who was on maternity leave. As a result of being on maternity leave there were no figures available to go to towards the selection criteria and therefore she was given a notional score. At the end of the exercise she scored half a point higher and the claimant was dismissed.

The ET held that by inflating the female employee's score in this way the Claimant had been treated less favourably on the grounds of sex, he had been discriminated against and unfairly dismissed.

The employer tried to rely on section 2(2) Sex Discrimination Act 1975 which provides that when a man is bringing a claim for sex discrimination "no account shall be taken of special treatment afforded to women in connection with pregnancy and birth". The ET commented that this should not be interpreted to provide women with blanket special treatment. This decision is being appealed we will provide a further update when this decision is received. In the meantime we would advise that you seek specific advice in relation to any pregnancy or maternity leave related employment issues.

Disclaimer: The information and opinions expressed in all Lee & Priestley LLP articles contained in our briefings and on our website - http://www.leepriestley.com are not necessarily comprehensive and should not be relied upon without taking in-depth professional advice.

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