In the case of SG Petch Ltd v English-Stewart UKEAT/0213/12 the Claimant, who was a part-time marketing manager, went on a period of maternity leave during which her duties were picked up by other members of the team. On her return to work, she was told that her work had been absorbed by other employees and that her role was redundant.

The original Tribunal held that although there was a true redundancy situation, the Claimant had been dismissed because of her maternity leave, which was maternity discrimination under the Equality Act 2010 and automatically unfair pursuant to the Maternity and Parental Leave Regulations 1999.

The Company appealed and the EAT overturned the Tribunal's decision.  In particular, the EAT held that where, on the tribunal's findings, the reason for dismissal was redundancy, the reason for dismissal could not also be maternity leave. The EAT rejected the Claimant's maternity discrimination claim on this basis.  This seems odd reasoning to us, and we expect this aspect may be appealed further. There may well be a genuine redundancy situation for unfair dismissal purposes, but that does not necessarily mean that an employee's selection for redundancy cannot amount to direct discrimination. Based on previous case law, the discriminatory reason did not need to be the sole or even the principal reason for the employer's actions; it only needed to have had "a significant influence on the outcome".

However, the EAT noted that the original Tribunal hadn't considered the separate and distinct issue of whether the dismissal was automatically unfair because the Claimant had been selected for redundancy because of her maternity leave and whether she should have been pooled with the rest of the marketing team and a selection made from that team. This would depend on whether their duties were "broadly interchangeable".  The case was sent back to the Tribunal to determine this point.

Comment: We wait to see whether the outcome of this claim is appealed further. However, it serves as a timely reminder that there are very specific protections which arise where a redundancy situation arises during an employee's maternity leave  - in particular, the employee must not be selected just because she has been on maternity leave and should be given priority over others when it comes to offering any suitable alternative vacancies.

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