Frettens Update: Employee providing maternity cover unfairly dismissed
Under the Employment Rights Act 1996 (“the Act”) an employer can fairly dismiss an employee hired to provide maternity cover when the employee on maternity leave returns to work. However, employers have to be wary of how they do this following the case of Victoria and Albert Museum v Durrant. In that case the Employment Appeal Tribunal (EAT) held that an employer must inform the employee providing maternity cover on engagement, in clear and unambiguous language, that the employment will be terminated upon the return of the permanent employee from maternity leave.
Mr Durrant had worked for the Victoria and Albert Museum previously, but been dismissed on capability grounds for ill health. During his notice period he took up a fixed-term contract with the Museum as a replacement for a permanent employee who was on maternity leave. The offer letter noted that this contract was offered to ‘facilitate’ a further search for other work in the Museum. When the employee on maternity leave extended her leave the Museum offered Mr Durrant a further six month contract to expire on 18 April 2008, noting that if he had not obtained a permanent post by then the contract would not be renewed and his employment would be terminated. This duly occurred.
Mr Durrant complained to the employment tribunal that he had been dismissed by reason of redundancy and was entitled to a payment under Civil Service terms and conditions. He also argued his dismissal had been unfair. The Museum contended Mr Durrant had not been dismissed by reason of redundancy, relying on the Act which says a dismissal will automatically be for ‘some other substantial reason’ where (a) on engaging an employee, the employer informs him or her in writing that the employment will be terminated on resumption of work by the employee on maternity or adoption leave and (b) the employer dismisses him or her in order to make it possible to give work to the returning employee.
The Tribunal decided against the Museum for two reasons. Firstly, it had not unambiguously stated that Mr Durrant’s employment would be terminated upon resumption of work by the permanent employee and, secondly, he was not a temporary employee engaged as a stopgap measure because of maternity leave. The tribunal concluded that the reason for dismissal was redundancy and found it to be unfair.
The Museum appealed. The EAT partly upheld the appeal in agreeing that the reason could be ‘for some other substantial reason’ but that it was nevertheless unfair because the Museum had not unambiguously told Mr Durrant as to the future termination of his employment.