Q&As

Where it is not practicable by reason of redundancy for an employer to continue to employ an employee returning from maternity leave under her existing contract of employment, and the employer is required to offer the employee any suitable alternative vacancy that exists, is the employer required to consider terminating the contract of a self-employed worker carrying out the same role as the returning employee and offering her that role either on self-employed terms or as an employee?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 14/04/2021

The following Employment Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • Where it is not practicable by reason of redundancy for an employer to continue to employ an employee returning from maternity leave under her existing contract of employment, and the employer is required to offer the employee any suitable alternative vacancy that exists, is the employer required to consider terminating the contract of a self-employed worker carrying out the same role as the returning employee and offering her that role either on self-employed terms or as an employee?
  • Redundancy during maternity leave

Where it is not practicable by reason of redundancy for an employer to continue to employ an employee returning from maternity leave under her existing contract of employment, and the employer is required to offer the employee any suitable alternative vacancy that exists, is the employer required to consider terminating the contract of a self-employed worker carrying out the same role as the returning employee and offering her that role either on self-employed terms or as an employee?

Redundancy is a potentially fair reason for dismissal under section 98 of the Employment Rights Act 1996 (ERA 1996).

For these purposes, an employee is dismissed by reason of redundancy if their dismissal is wholly or mainly attributable to:

  1. the employer ceasing or intending to cease carrying on the business for the purpose of which the employee was employed by the employer

  2. the employer ceasing or intending to cease carrying on that business in the place where the employee was so employed

  3. the requirements of the business for employees to carry out work of a particular kind, either generally or in the place where the employee was employed, ceasing or diminishing (or being expected to cease or diminish)

For further information, see Practice Notes:

  1. Reason for dismissal—redundancy

  2. Definition of redundancy, in particular section: Redundancy payment entitlement, and fair reason for dismissal

However, a dismissal will be automatically unfair if the

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