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Covering maternity leaveThe right to maternity leave, in some form, has been with us since 1975 and has changed a great deal during that time. As the law currently stands, any employee (whose expected week of childbirth falls after 1 April 2007) can be absent on maternity leave for up to 12 months. At the expiry of maternity leave the employee is entitled to return to her old job on terms and conditions that are not less favourable than she would have enjoyed had she not been absent (subject to some qualifications). Where a locum is engaged for the duration of another employee’s maternity leave, he or she can be in place for over 12 months and therefore acquire the length of service necessary to claim unfair dismissal.
Preventing a claim for unfair dismissalHow does an employer avoid a claim for unfair dismissal by the locum at the end of the maternity leave? The answer lies in making clear to the locum in writing, from the start, that they are only being employed to provide maternity cover and that their employment will terminate upon the return of the employee who is on maternity leave. Courtesy of section 106 of the Employment Rights Act 1996, doing so offers the makings of a defence to an unfair dismissal claim. Section 106 states that an employee will be regarded as having been dismissed for a substantial reason justifying dismissal where:
If no such written notification is given at the beginning of the locum’s engagement then it is likely that the employer will fall at the first hurdle and fail to establish a potentially fair reason for dismissal. If the appropriate written notification is given the employer has the beginnings of a defence. However, this is only half the story… Section 106(4) of ERA 1996 provides that s 98(4) of ERA 1996 still applies. This means that, if the employer provides the required written notification, it establishes a potentially fair reason for the eventual dismissal. However, the employer will still have to show that it was a sufficient reason for dismissal in all the circumstances. It is not yet clear how this will be interpreted by a tribunal i.e. when will this reason not be sufficient? Although there is no express right for the locum to be considered for retention, it is likely that whether there is alternative employment available will be relevant in assessing whether the reason was sufficient. Employers would be well advised to consider whether there are any suitable vacancies for the locum before deciding to dismiss. If there are no such vacancies, or the locum refuses any offer made, the employer should follow their own procedures and the statutory dismissal procedure as a minimum.
What if the locum becomes pregnant?As there is no qualifying period before an employee becomes entitled to maternity leave, a locum could, herself, become pregnant and be entitled to take maternity leave. This could mean that an employer requires to have a second locum cover for the first locum. Assuming the first locum was employed on the basis of section 106 ERA 1996, would the first locum, on the expiry of her maternity leave, be entitled to her old job back? The answer to this depends on whether the original employee has returned to work. When the original employee returns to work the first locum can be dismissed (providing that suitable alternative employment is not available and the relevant procedures are followed as discussed above). However, if the original employee elects to take the full 12 months of maternity leave whereas the first locum only takes 6 months’ leave, it is possible that the first locum could return to work while the second locum is still in place. As the original employee for whom the first locum was covering (“the other employee” in terms of section 106 above) has not returned to work, section 106 will not give the employer a potentially fair reason to dismiss the first locum. It is the second locum, if any, that should be dismissed at this stage. The problem deepens if the original employee decides not to exercise her right to return or goes off sick long term. CommentIt is clear that hiring a locum to cover for maternity leave can become complex. Employers can give themselves some protection by ensuring that the nature and expected duration of each and every appointment is made very clear, and in writing, when the post is offered to any locum. Further informationWe hope you have found this useful. If we can help with any matters arising from this e-zine, or any employment law matter, please contact Alan Masson, Murray McCall, Andrew Brown, or any other member of our team. |
