Q: Can an employee on maternity leave be made redundant?

A: There is no rule prohibiting an employer from selecting a woman on maternity leave for redundancy provided the selection criteria is genuine and has been properly applied. However, there is a special rule relating to the offer of suitable alternative employment in a redundancy situation. If there is a suitable vacancy available, it must be offered to a woman on maternity leave. In other words, a woman on maternity leave is at the front of the queue when it comes to alternative employment. If a suitable vacancy is not offered, the dismissal would be automatically unfair.

Q: Is every employee dismissed for redundancy entitled to redundancy pay?

A: No, employees who have worked for their employer for less than two years are not legally entitled to a redundancy payment. Nor is any employee who has unreasonably refused an offer of suitable alternative employment from their employer.

Q: What is the difference between wrongful dismissal and unfair dismissal?

A: Wrongful dismissal occurs when an employer dismisses an employee in breach of an employee’s contract of employment. Usually this arises when an employer dismisses an employee summarily (ie, without any notice) or with short notice – and without any justification.

The only time an employer can dismiss an employee without notice is if they have reasonable grounds for believing the employee has committed an act of gross misconduct.

Wrongful dismissal might also occur if an employer terminates the employment without following some contractual procedure.

In contrast, unfair dismissal is a statutory right.

A dismissal which is wrongful need not necessarily be unfair, and vice versa.

This is because an employer may behave unreasonably in dismissing an employee even though he has observed the letter of the contract by giving the employee notice or payment in lieu of notice.

Q: Do employees have the right to work flexibly?

A: Employees who care for adults or children under 17 years (or children under 18 if disabled), subject to certain qualifying conditions, have the right to request a flexible working pattern.

However, this entitlement does not give employees the right to work flexibly only the right to make a request.

The employer must consider the request and follow the set statutory procedure.

An employer can reject the application if its reason falls within one or more of the specified business grounds: the burden of additional costs, detrimental effect on the ability to meet customer demand, inability to recruit additional staff, detrimental impact on quality, detrimental impact on performance, insufficiency of work during the periods the employee proposes to work and planned structural changes.

An employee may complain to an Employment Tribunal if an employer fails to follow the procedure correctly or has rejected the application on the basis of incorrect facts.

If the complaint is upheld the Tribunal may order the employer to reconsider the application and may award compensation of up to eight weeks' pay.

Employers should, however, take care in refusing a request as there may be circumstances where a refusal to allow an employee to change their working patterns may amount to sex discrimination.

For example, an insistence on full-time working may give rise to a claim of indirect sex discrimination.

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