Synopsis
In a recent determination, an employee returned from maternity leave and upon her return to work she was subsequently made redundant by her employer. The employee took a claim to the Employment Appeals Tribunal for unfair selection but was unsuccessful under the Unfair Dismissals Acts, 1977-2001.
Factual Background
The case, Nignol -v- Nature's Best Limited (UD 821/2010), involved a company which was in the business of supplying convenience foods. While the company originally had over 270 employees, pressure from suppliers and the economic recession resulted in the company having to reduce staffing levels to 170 employees. As part of the restructuring process, some roles were combined and merged into one role resulting in the elimination of certain positions within the company. The company used last-in-first-out (LIFO) as the redundancy selection method for their general operatives whereas members of the managerial and clerical staff, given the nature of their role, were selected for redundancy based on skills.
The employee in this case, Ms Nignol, was employed as a receptionist and was later required to look after some payroll work as part of her working duties. Due to the restructuring process, her role was extended to incorporate a security aspect such that her work location was move closer to the front entrance where she was no responsible for letting people in and out of the premises.
Maternity Leave and Redundancy
The employee went on a period of maternity leave and when she returned to work her position remain unchanged and she was performing the exact same role on the same terms and conditions. Shortly after the employee returned she was informed of the financial position of the company and that her receptionist’s role was to be combined with a telesales role. This process resulted in Ms Nignol being selected for redundancy and she was given one months’ notice of the termination of her employment. Ms Nignol was selected for redundancy as the new combined role required the person in that position to able to speak Russian and Lithuanian as 80% of the workplace spoke these languages and unfortunately she was not qualified to do this.
Employee Aggrieved at the Timing of Her Selection for Redundancy
The EAT noted that the employee’s sense of grievance was that she was made redundant very shortly after her return from maternity leave. It is worth noting that section 26 of the Maternity Protection Act, 1994, provides that an employee returning to work from protective leave has the right to return to work in the job which the employee held immediately before the start of that period. The Tribunal found in this case that the employer did in fact return Ms Nignol to the same role and work she was engaged in prior to her maternity leave commencing and therefore there had been no breach of section 26 of the Maternity Protection Act.
Making an Employee Redundant Upon her Return from Maternity Leave
The Tribunal recognised that during the period of protective leave an employer may identify an opportunity to make an employee who is on protective leave redundant but the employer is prohibited from making the employee redundant or placing that employee on notice of redundancy during the maternity leave period. However, the Tribunal stated that nothing in the Act prohibits the employer from making the employee redundant, either immediately upon or shortly after the employee exercises her right to return to work. The Tribunal further stated that “an employer is compliant with the relevant provisions of the Maternity Protection Act, 1994 where the employer holds off the issuance of a notice of termination of employment reason of redundancy until the end of the leave period”
Selection for Redundancy
The Tribunal accepted that the company had clear evidence that they were obliged to reduce costs substantially in view of their trading circumstances and that in the course of doing so a large number of employees were made redundant prior to this employee’s selection for redundancy. The Tribunal accepted the decisive advantage that the other employee who was retained was a qualified trainer to deliver food safety training in the languages which were native to 80% of their workforce and Ms Nignol was not a qualified trainer. Interestingly the Tribunal stated that although it was possible for the employer to have provided the employee with the opportunity to become a qualified trainer the Tribunal held that “an employer choosing between employees for redundancy on the basis of training or qualifications is not under any obligation to educate any one employee up to the level of any other but may instead select on the basis of the current differences in training or qualifications”.
The Tribunal found that the employee was fairly selected for redundancy and therefore the employee’s claim under the Unfair Dismissals Acts, 1977 to 2007 failed.
Conclusion
The above case was considered in depth by the Tribunal and this can be acknowledge by the detail that was provided in the determination as more often than not, the Tribunals do not go in to such depth to justify their determinations and thee rationale behind their decisions.
This case has highlighted a number of aspects of the redundancy consultation process that employers should be aware of.
1. The first issue is that of the employer obligation to provide employees with training which will ensure that their employment is protected from redundancy. Some cases in the past have shown that employers must provide training to employees if this is possible in order to prevent a redundancy situation. However in this case, in a selection scenario between two or more employees, the Tribunal stated that “an employer choosing between employees for redundancy on the basis of training or qualifications is not under any obligation to educate any one employee up to the level of any other but may instead select on the basis of the current differences in training or qualifications”. This is good for employers as they can now base their selection criteria on training and qualifications as one of the main areas to ensure that the most qualified and trained employee is retained which will benefit the company in the long run.
2. The other area covered by the Tribunal in this case is that of the employees’ rights when they are on protective leave. It is important that employers are aware that when employees are on protective leave such as maternity leave it is not possible to terminate their employment for any reason and most notably not for reasons of redundancy. A lot of employers may find when an employee is gone on maternity leave that there is no longer a requirement for them to be in the role. Employers must be aware that they must allow the employee to come back into their original position before commencing any redundancy process. The majority of employers do not pay maternity leave to their employees so it will not be an extra cost to the employer to postpone any potential redundancy process until the employee returns from their protective leave and therefore ensuring that there is no exposure under the Maternity Protection Act.
