Yes, you can.
But before making your position redundant, your employer must be particularly careful that they have not treated you just like any other employee.
That is because employees on parental leave have some special protections. If your employer does not satisfy these higher standards, your dismissal may be unlawful.
THE NORMAL TEST
Lets take a step back for a moment to consider what employers must do before deciding to make an employee redundant under any other circumstances.
In broad terms, there are two things employers must do:
- They must have a good reason to restructure. Employers cannot make an employee redundant because they don’t like the employee’s work ethic (or lack thereof) or because the employee has been caught doing something wrong. Redundancy is about the role being unnecessary; not about anything the person in that role has done or failed to do. Saving costs or reorganising the business 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.
- The employer must consult with the employee before making a final decision. The consultation must be genuine, not a sham. The employer may have a firm view about what sort of changes are needed in their business; but they do have to keep an open mind when listening to the employee’s feedback. That is because the employee may think of alternatives that the employer had not thought of, and these must be given proper consideration. To enable the employee to give quality feedback the employee must be given the information that the employer is relying on to justify their reasons for the redundancy.
WHAT DIFFERS WHEN THE EMPLOYEE IS ON PARENTAL LEAVE
Clearly, the employee on parental leave is disconnected from the workplace. So the employer must take special care to ensure the employee is fully consulted with.
That may mean making extra effort to meet with the employee at a time and place convenient for them, bearing in mind their child-rearing responsibilities and that coming into the work place may not suit.
It will also mean taking care to ensure the employee has all the information relevant to the proposal before they give their feedback. Sometimes employers overlook that information given in staff meetings held at the workplace will not have been passed on to the employee who is on parental leave. The employee on parental leave may feel like they are out of the loop in this regard. So the employer should take time to ensure the employee is adequately informed.
But here is the key difference: employees on parental leave have their own special legislation that obliges their employers to keep their jobs open for them until they return to the workplace. Further, it says 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 the employer has 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.
A POSSIBLE SCENARIO
To give a possible example, let’s say the employer distributes your work to other staff while you are on parental leave. That is fine if at the end of your parental leave, you can slot back into your role and take those duties back on again.
But it will not work for your employer to argue that your role is now redundant because they have now realised their duties can be performed by others. That would not satisfy their obligation to ensure your job is kept open for you. Nor, arguably, has there been a reason for your redundancy that arose after you started parental leave – it was the fact that you went on parental leave that turned your employer’s mind to making changes and nothing else.
An employee can be made redundant even if they are on parental leave, but the employer has a 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 the employer fails to do these things they may be found to have dismissed the employee unfairly.