The importance of clarity for Maternity Cover

There is a special provision in the law governing unfair dismissal that makes it potentially fair to dismiss someone specially taken on for maternity cover when the new mother returns to work, so long as the dismissal is otherwise procedurally fair.

However, the provision, contained in section 106 of the Employment Rights Act 1996, makes it clear that the employment of the cover will end when the relevant period of maternity leave ends. In Victoria & Albert Museum v Durrant the Museum failed to do this with the result that his dismissal was regarded as, in fact, a redundancy and he was entitled to civil service enhanced redundancy terms.

Mr Durrant worked in the Picture Library at the V & A from 1988. He was dismissed in April 2008. He became ill in May 2005 and when fit to return after a prolonged absence, he was not able to return to his previous post. The work he had been doing was being carried out by a replacement, and his illness originated in difficulties that had arisen between him and his managers. He was effectively moved around a series of short term posts until, in 2007, he was given notice of his dismissal on ill-health capability grounds.

However, in 2008, work was found for him on a short fixed term contract as a replacement for a permanent post holder, who was on maternity leave. No other work was available for him and when that contract expired (and the post holder returned to work after her maternity leave ended) Mr Durrant’s dismissal, which had been decided upon in 2007, under the Museum’s incapacity procedure, was brought into effect.

The Employment Appeal Tribunal (EAT) found that the museum could not rely on the provisions in section 106 because it had not followed the procedure in that it failed to properly notify Mr Durrant that this post was as maternity cover and it would end when the post holder returned from maternity leave.

Protect yourself

• On taking an individual on to cover maternity, the employer must informs him or her in writing that his or her employment will be end when the employee who is, or will be, absent wholly or partly because of pregnancy, childbirth or adoption leaver returns.
• Employers need to be sure that the information given to the employee about the nature of the employment must be clear and unequivocal and the employment must in fact be terminated to facilitate the return to work of the other employee. If the wording is ambiguous, the provision will not apply.

The EAT also pointed out that, where another reason for dismissal exists (such as redundancy) section 106 will not automatically make the dismissal potentially fair under that section. This will only occur where there is no other reason for dismissal than to facilitate the return to work of the woman from maternity leave.