Redundancy after maternity leave

In Petch Ltd v English-Stewart [EAT/0213/12], Mrs English-Stewart was employed as a part-time marketing manager. Her job had been carried out by other employees in the marketing department during her maternity leave. Mrs English-Stewart was made redundant after she returned to work from maternity leave. She claimed unfair dismissal and unlawful sex discrimination.

Employment Tribunal

The employment tribunal (ET) upheld the claim because the dismissal was connected with Mrs English-Stewart’s maternity leave. She was the only employee who had been singled out to be made redundant.

Employment Appeal Tribunal

The Employment Appeal Tribunal (EAT) disagreed with the ET. Although the dismissal was connected with the maternity leave - there was a genuine redundancy situation. Hence, the reason for the dismissal was redundancy. And the ET should have asked if the redundancy dismissal was connected to the maternity leave - by looking at whether reg. 20(2)(b) of the Maternity and Parental Leave etc Regulations 1999 had been satisfied.

The regulation states:

(b) it is shown that the circumstances constituting a redundancy applied equally to one or more employees in the same undertaking who held positions similar to that held by the employee (i.e. Mrs English-Stewart) and who have not been dismissed by the employer;     

The EAT remitted the case to the ET to consider whether Mrs English-Stewart's job was similar to the jobs of the other employees in the marketing department.

Comment

The case illustrates that if a genuine redundancy situation arises as a result of an employee's job being absorbed by other staff while the employee is on maternity leave (or long-term sick leave) – it does not automatically mean that the employee’s redundancy dismissal is unfair or discriminatory.

In July 2012, the ACAS published a guide entitled Managing redundancy for pregnant employees or those on maternity leave. The guide is available on the ACAS website.

Statutory payment rates for 2013/14

The statutory payment rates for 2013/14 are as follows.

• The weekly rate of Statutory Sick Pay (SSP) is £86.70.

• The weekly rate of Statutory Maternity Pay (SMP) is 90% of the employee's average weekly earnings for the first six weeks - followed by the lower of 90% of average weekly earnings or £136.78 per week for the remaining weeks of the maternity pay period.
• The weekly rate of Statutory Paternity Pay (SPP) or Statutory Adoption Pay (SAP) is the lower of 90% of the employee's average weekly earnings or £136.78 per week.
• The payment of SSP, SMP, SPP, or SAP is subject to the employee's average earnings being at least £109.00 per week.

Source: Department for Work and Pensions

Tribunal awards will increase from 1 February 2013

From 1 February 2013, tribunal awards will be increased by the Employment Rights (Increase of Limits) Order 2012.

The main increases are:

• The maximum amount of a week’s pay will increase from £430 to £450.
• The maximum compensatory award for unfair dismissal will increase from £72,300 to £74,200.

• The daily limit on a guarantee payment will increase from £23.50 to £24.20.

In September 2012, the Government published a consultation paper about reducing the maximum compensatory award for unfair dismissal. The Government’s response to the consultation paper is expected in Spring 2013.