Today's EAT review concerns Hazel Cosgrove v Kellor Services (Irl) Limited (UD 884/2009) and involves the redundancy or otherwise of an HR professional claimant, where problems allegedly started after pregnancy.

Case Name: Hazel Cosgrove v Kellor Services (Irl) Limited (UD 884/2009) 

Legislation: Unfair Dismissals Acts 1997 TO 2007; Redundancy Payments Acts 1967 TO 2007; Minimum Notice and Terms of Employment Acts 1973 TO 2005

Jurisdictions/Subject Matter: Pregnancy Related Dismissal


Facts

The claim under the Unfair Dismissals Acts 1997 to 2007 was one of constructive dismissal and therefore, the onus was on the Claimant to show that her resignation was justified.

The Claimant commenced employment with the Respondent’s Human Resource (“HR”) Department in a UK branch in 2001 and worked there for a period of 4 years. The Claimant's manager (“SW”) was based in Ireland. After 4 years, the Claimant moved to Ireland and commuted to the UK 3 days a week.

The Claimant fell pregnant and requested part-time hours. This request was refused but she was told that she could work on a part-time basis when she returned to work following the birth of her child. During her maternity leave the Claimant was asked to travel to the UK branch one day a week. The Claimant undertook this trip once but was told the following week that the part-time position was no longer viable.

In October 2008, the Claimant received a call from SW informing her that there would be downsizing in the UK and consequent redundancies.

The Claimant returned to work (following her maternity leave) in January 2009 and was moved to the sales department from her previous role in HR. The Claimant was unhappy with the move from a managerial role to an entry-level position.

After a number of discussions with various managers, the Claimant felt that it was clear that her position in HR was no longer available to her and she attended her doctor and commenced sick leave for work related stress. The Claimant resigned from her position in April 2009.


Determination

The Tribunal was satisfied that the Claimant was competent enough to be a HR manager and that she was (prior to her maternity leave) carrying out the duties of a HR Executive. The Tribunal considered the refusal by the company to allow the Claimant to work part-time to be unusual as the business had slowed down and other staff members were granted same.

The Tribunal also adduced from evidence that all other staff members returned to their exact previous position following maternity leave. Therefore, the Tribunal concluded that the Claimant was constructively dismissed and awarded her €27,800 under the Acts.

The Claimant’s appeal under the Redundancy Payments Acts 1967 to 2007 and the Minimum Notice and Terms of Employment Acts 1973 to 2005 had to fail as the Claimant submitted her resignation to the respondent.

Full decision:
http://bit.ly/gprL4b


Legal Review

There are specific legal provisions and rights and entitlements attaching to those provisions for women who are out of the workplace on maternity leave.

Section 26 of the Maternity Protection Act 1994 (the “Act”) provides an employee with a general right to return to the position she held before taking maternity leave. Also, if a transfer of undertaking has occurred while the employee has been on leave, she is still entitled to return to work.

However, the right to return to the previous position held is not absolute and Section 27 of the Act allows for the employer to provide “suitable alternative work” in certain circumstances. Section 27 provides that where an employee is entitled to return to work but it is not reasonably practicable for the employer to permit her to return to work, she is entitled to be offered suitable alternative employment under a new contract of employment.

The rights of the employer under S.27 are not absolute and S.27(2) imposes two requirements in respect of the new contract of employment as follows:

1) The work required to be done must be of a kind that is suitable in relation to the employee concerned and appropriate for her to do in the circumstances; and
2) The terms or conditions of the contract relating to the place where the work under it is required to be done, the capacity in which the employee concerned is to be employed and any other terms or conditions of employment cannot be substantially less favourable to the employee than those of her contract of employment immediately before the start of the period of absence from work while on protective leave.

To meet the above criteria, the employer must assess the situation subjectively in relation to the work done and the conditions of employment before the employee went on maternity leave. In reaching a decision in such cases, the EAT will have regard to the subjective test and whether or not it was correctly applied by the employer.

In order to rely on the provisions of S.27, the employer must show that it was not reasonably practicable to permit the employee to return to work and that reasonable attempts were made to be in a position to allow the employee to return to her job – for example hiring a temporary rather than permanent replacement for the position while the employee is on maternity leave.

Section 28 of the Act requires the employee to notify of her intention to return to work, at least four weeks before she returns to work, unless there are reasonable grounds for not doing so. In the above case, it transpired that the employee had not given her manager any notice of her return to the workplace but the EAT did not refer to this in their determination.

Technically, an employee is not entitled to return to her job or suitable alternative work unless she has complied with the provisions of notification under S.28. The employer is not obliged to enquire as to when the employee intends to return or otherwise.

The Unfair Dismissals Act 1977 as amended by the Maternity Protection Act 1994 (Section 38(4)) states that dismissal of an employee will be deemed unfair if it results wholly or mainly from:

“a) The employee’s pregnancy, giving birth or breastfeeding or any matter connected therewith; or
b) The exercise or proposed exercise by the employee of a right under the Maternity Protection Act 1994 to any form of protective leave or natal care absence… or time off from work to attend ante-natal classes or time off from work or a reduction in hours for breastfeeding”.

The EAT in its determination stated that “the Tribunal can understand why the Claimant was uncertain about her position as she was refused part-time work, but on her return her full time position was not available for her however she was refused redundancy”. This appears to be the basis for the EAT decision.

Employers are likely to have a number of concerns with this. Firstly, although there is an obligation on employers to consider part-time work under the Code of Practice on Access to Part-Time Working, there is no obligation to actually offer part-time work. Secondly, although her full time position was not available for her (because the role no longer existed), the employer did keep her in a full time role, just not doing the same work. Perhaps there was something with regard to the specific nature of the work (which does not appear in the EAT determination) which swayed the Tribunal into its determination.

On the face of it, and according to the legislation, provided part-time work is properly considered by the employer, and provided the employer can find “suitable alternative work” then an employee will not be entitled to a statutory redundancy payment if the employee refuses the suitable alternative work. If the employee is given “alternative work”, then an employee who refuses to take such alternative work (which is not suitable), is entitled to a statutory redundancy payment. Of course, if they accept the alternative work, then they will not be entitled to a statutory redundancy payment.

The main difficulty here for the employer may have been that it did not go through a redundancy process. If it had gone through a redundancy process, putting the employee on protective leave, and then offering the employee the “suitable alternative work” or the “alternative work”, then provided the procedures were properly applied, the employee should not have been able to succeed in a constructive dismissal case.

Even though the employer did not go through a redundancy procedure in this instance, employers will still have concerns about the fact that an employee can claim constructive dismissal, essentially because she was refused part-time work, and refused redundancy.

Traditionally, no employer has ever been required by the courts or Tribunals to make an employee redundant at their request. Employers will hope that this case is not the start of a trend in that direction.