Can you make an employee redundant whilst they are on parental leave?
The short answer is yes, but the process is slightly more onerous that a standard restructure - employees on parental leave are not like any other employee and have some special protections that you will need to consider.
Before an employer commences any normal restructuring process there are two conditions that MUST be met;
A good reason
Employee consultation
It is important to remember that a restructure or redundancy is a "no fault" situation. An employer cannot simply make an employee redundant because they don't approve of their work ethic or personal opinions. Redundancy is about the role being unnecessary to ongoing organisational operations; not about anything the person in that role has done or failed to do. Saving costs or re-organising operations in a more efficient manner are typical reasons for suggesting a role is redundant. Employers are entitled to make changes in their businesses to meet these aims, but before this can be done genuine consultation with employees whose job could be potentially affected needs to take place. This includes providing these employees with the information that may be relied on in the decision making process and real consideration of any comments or other feedback that they may provide, before any final decision is made.
So what is different when an employee is on Parental Leave?
The Parental Leave and Employment Protection Act 1987 obliges employers to keep their employees' jobs open for them until they return to the workplace.
Further, it states that employers cannot terminate the employment of an employee who is on parental leave unless:
the reason for the redundancy arose after the parental leave started; and,
there was no prospect of the employee being redeployed to a similar, but vacant, position.
This means that employers have a duty not only to ensure the position is kept open for the employee, but to also identify a change of circumstances that has occurred after the employee went on parental leave to justify the redundancy of that employee’s role.
If that is the case, and an employer was to proceed with a restructure, a great deal of care will need to be taken care to ensure the employee on parental leave is provided with all the information relevant to the proposal before they give their feedback.
During their time of leave the employee is often somewhat disconnected from the workplace. So the employer must take special care to ensure the employee is fully consulted with. It is not uncommon in these circumstances for employers overlook information that may have been discussed or provided within meetings held at the workplace and as such this information may not be passed on, the risk here is that the employee could argue that they had not been adequately informed.
So yes, redundancy of an employee on parental leave can be done, but the employer has a far greater responsibility than normal to show they have arrived at a fair decision.
The employer has to take extra care to consult with the employee before finalising their decision. And the reason they think the employee’s role is no longer needed must have come about by events that happened after the employee went on parental leave.
If these conditions are not met then the dismissal will likely be held unjustified.
Disclaimer
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.