Authors: Ann Bugeja & Christine Borg Millo
‘X’’s current role has changed quite a bit since she’s been off on maternity leave, which we knew it would, due to a new system coming in and the needs of the team changing due to business requirements. The person covering her maternity leave (‘Y’) has moved things along with the new system being implemented and also works on sales related elements, which X doesn’t. Therefore, the company (‘ABC Limited’) is keen to look at re-structuring and eliminating the role X has. ABC Limited would like to keep Y, as their skillset and work is more in keeping with how they see the role and team working going forward.
- Is it possible to eliminate the role as soon as X returns from maternity leave on the grounds that the role has changed, and team needs are different?
If proven that upon X’s return from maternity leave, her previous role/position has been eliminated by the company, the law states (in article 36 (19) of EIRA) that such employee should be granted alternative work.
The law reads as follows:
At the termination of maternity leave, the employee is entitled to:
- resume work in the post she occupied on the commencement of her maternity leave, or
- in an analogous post if at the time when she becomes so entitled the post she formerly occupied is no longer available.
- If there are not any alternatives within the business, is it a redundancy situation?
Redundancy should be a last option. In a 2014 decision it was determined that the redundancy of one person is not a redundancy (Lara Boffa vs Philip Toledo Limited – Industrial Tribunal 15/10/2014).
- The amount of risk this carries and why?
The law always places the employee as the weaker party in an employment relationship, and especially so in the case of maternity leave. Terminating an employee due to maternity reasons may also be deemed to be discriminatory.
It is crucial to emphasise that the law itself is clear when it states that at the termination of maternity leave the employee has a right to:
- Resume work in the post she occupied on the commencement of her maternity leave, or
- In an analogous post if at the time when she becomes so entitled the post she formerly occupied is no longer available.