This week, a contracted worker has announced pregnancy, but still expects to come back after maternity leave to finish the months she missed. Is this correct? Matthew Whelan and Ester Smith advise.
I have an employee who announced she was pregnant within one month of commencing a 12 month fixed term contract. The contract will finish half-way through her maternity leave but she seems to think she is entitled to return to work following her maternity leave to complete the months she missed due to maternity. Is this true?
Matthew Whelan, solicitor, Speechly Bircham
Your employee’s contract of employment should continue during her maternity leave until the fixed term expires. If her contract is renewed beyond her period of maternity leave then she will be entitled to resume her job. This may be the case if, for example, the work she is doing is not urgent and can wait until she returns. For example, if it is a research post and the research is not time critical, this may be why she has said this and you should consider this request if appropriate.
If you decide not to renew her contract, the expiry and non-renewal of her fixed term contract will amount to a dismissal. If she has one year’s service then she will have a right to claim unfair dismissal, meaning you need to have a fair reason for the dismissal and follow the appropriate process in line with unfair dismissal law. If the fair reason is redundancy (which it may well be) then you would need to for example consider whether the employee would be entitled to a redundancy payment and also whether there is any alternative employment.
You should also be careful of selecting an employee for redundancy simply on the basis that their fixed-term contract has come to an end as this may be unlawful. You should consider when looking at selection whether to pool that person with other employees, including permanent employees.
As a general point, fixed term employees are protected against less favourable treatment than comparable permanent employees by reason of their fixed term status, although this is subject to the ability to objectively justify that treatment.
You should also be aware that the law provides special protection to women on maternity leave. For example, whilst on maternity leave, the employee should be offered any suitable alternative employment in preference to certain other employees being made redundant.
If you cannot meet the employee’s requests or consider renewal of her contract unlikely, then she may argue this is unlawful for a number of possible reasons and I therefore recommend that you take legal advice before you take any action. Selecting the employee for redundancy on the basis that her fixed term contract has come to an end may be unlawful. It may also be discriminatory to select an employee for redundancy or otherwise treat her differently on the ground of her pregnancy/maternity leave.
You also need to consider the requirement to pay Statutory Maternity Leave as her receipt of this from you is not dependent on her remaining your employee throughout maternity leave. However, you should be able to recover most of the SMP paid to her from HMRC.
I would strongly recommend that you take detailed legal advice on this at the relevant time as the answer to this question very much depends on the facts.
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Esther Smith, partner, Thomas Eggar
There is no reason why the fixed term should not expire at the original expiry date irrespective of the fact that the employee will be on maternity leave. The reason for the dismissal would clearly not be related to her pregnancy or childbirth, as the fixed term nature of the contract was confirmed and agreed prior to her announcing her pregnancy.
However, she may be entitled to some maternity pay, depending on how the dates work out, and she may be entitled to receive the balance of the statutory maternity pay she would have received had she not been dismissed even though her contract comes to an end during her period of leave.
She does not have a right to return after her leave to work for the period of time that she was on leave during her fixed term contract.
Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information, please visit Thomas Eggar.