Dairine Walsh, solicitor in the Employment Law unit was the expert in the Company Matters section of the Sunday Business Post, on Sunday 19th April 2009.

  

Answer

Under the Maternity Protection Acts 1994 and 2004, any purported termination (or notice of termination) of an employee’s job while on protective leave is void. Protective leave means maternity leave, additional maternity leave, leave to which a father is entitled where the mother has died, or leave granted on health and safety grounds.

  

Once an employee on maternity leave gives four weeks’ written notice of her intention to return to work, then, under the acts, she has a general right to return to work - or, where this is not reasonably practicable, to a suitable alternative position. If this employee’s position is to be made redundant, this may only be done on her return to work from maternity leave. However, you must remember that, in selecting any employee for redundancy, it is the position and not the person that is redundant.

  

There are five definitions of redundancy outlined in the Redundancy Payments Act 1967 (as amended). One of the definitions covers the situation where an employer has decided to carry on the business with fewer or no employees, either by requiring the employee’s work to be done by other employees or otherwise. Your situation appears to fit this definition.

  

Under the legislation, any employee being made redundant is entitled to a minimum of two weeks’ notice. If your employee has at least one year’s continuous service, then she is also entitled to the protection of theUnfair Dismissals Acts.

 

Under these acts, all dismissals are deemed to be unfair unless there are substantial grounds justifying the dismissal, such as the redundancy of the position. The dismissal of an employee on grounds of her pregnancy or any connected matters is considered unfair. In order for a company’s decision in relation to redundancy not to be challenged as an unfair dismissal, there must be a genuine redundancy situation and, where there is not a complete cessation of a company’s activities, the mechanism for selecting employees for redundancy must be capable of being upheld objectively.

  

Although you say that your employee’s role has been allocated to other staff, the issue is the selection of the employee for redundancy. She could claim that there was not a genuine redundancy situation, and/or that she has been unfairly selected and unfairly dismissed. In all cases, the Employment Appeals Tribunal (EAT) will ask an employer to justify the selection of a particular employee for redundancy. In many cases, it will also ask the employer to produce documentary evidence supporting the selection of the employee and evidencing the downturn in business.

  

If your employee were to go to the EAT, it would look for evidence that a genuine redundancy existed and that the employee was selected fairly and objectively. It would also look for evidence to show that you consulted the employee and considered alternative positions for her.

 

If her claim succeeds, the EAT can award her up to two years’ remuneration, subject to her obligation to mitigate her loss. There would be time and expense involved in defending any such claim and there may also be adverse publicity. Therefore, it is important that you have objective, fair and reasonable grounds for selecting this employee for redundancy, and that these are documented.

  

Finally, it is possible that this employee may also make a claim under the Employment Equality Acts that she has been discriminated against on the basis of her gender.

  

In summary, before making any decision on this matter, it is advisable that you document the reasons why this particular position is to be made redundant. You should consider alternative arrangements such, as the possibility of the employee job-sharing with other staff.

  

  

For further information on this issue, please contact Dairine Walsh (d.walsh@beauchamps.ie) or any member of the Employment Law team.