RECRUITMENT - 18.05.2011

Hired (un)specifically for maternity cover

Ups and downs of maternity cover

Quite often when a permanent employee announces that she’s going on maternity leave her employer brings in temporary cover. This is sensible for a couple of reasons: not only will her work be dealt with during her absence, but if she decides not to return afterwards, her replacement may agree to take over her role.

Decided to come back

Of course, many women do come back to work after a period of maternity leave. Luckily, if this happens, you’re not required to keep the spare replacement employee - provided you follow the rules; s.106 of the Employment Rights Act 1996 (ERA) states that they can be “fairly dismissed to facilitate her return to work”.

Note. Any termination of this nature will be for “some other substantial reason”. But it only genuinely applies if you notify the temporary employee in writing at the outset that their: (1) appointment is specifically for maternity cover; and (2) employment will end when the post holder returns from maternity leave.

Made a simple mistake

But, as the facts in Victoria & Albert Museum v Durrant 2011 show us, it’s easy to trip up on what should be a fairly simple process. In this case, Mr Durrant (D) worked under a permanent contract with the Victoria and Albert (V&A) Museum. Unfortunately, after long-term sickness absence he was unable to fulfil this role. So the V&A invoked its capability procedure and eventually decided to dismiss him for incapacity; it gave him six months’ notice (see The next step).

Work here for a while

He was then transferred to provide six months’ temporary cover for a permanent employee who was on maternity leave. As you might expect, when she returned there was no longer a role for D and the V&A dismissed him. At this point, he claimed unfair dismissal, alleging that it had really conducted a sham redundancy exercise.

EAT decision

The matter ended up in the Employment Appeal Tribunal. It has recently ruled that the V&A doesn’t have the protection of the ERA. This is because it only told D his six-month contract was to “cover a period of maternity leave”, i.e. it failed to advise him that it would be terminated on the return of his colleague from maternity leave.

What now? The matter will now be remitted back to the tribunal to consider whether D’s dismissal was fair. It will have to take into account the fact that s.106 doesn’t apply.

Tip 1. It remains to be seen what decision it will reach, but one thing’s for sure - had the V&A simply stated in its offer letter and temporary contract that: “This position is for maternity cover andwill terminate when the post holder returns to work at the end of her maternity leave” it would have won the case. So always make this clear.

Tip 2. You should also insert similar wording into any job ads for maternity cover and highlight the fact if you’re using your own application forms.

For a free sample capability procedure (PS 13.11.03A) and offer of appointment letter (PS 13.11.03B), visit http://personnel.indicator.co.uk.