The parent trap: Redundancy and parental leave

Is it possible to make an employee’s position redundant while they’re on unpaid parental leave? It’s an interesting question. Here’s the answer.

Absence while on parental leave doesn’t offer an employee any greater protection from dismissal than if they were at work.

Provided you don’t apply discriminatory or capricious selection criteria in the redundancy decision, there’s nothing to prevent you from making a position redundant while an employee is on parental leave. It’s important to note that it’s the position being made redundant, not the employee.

That said, you should apply objective selection criteria and be genuinely satisfied that the redundancy is based on meeting the operational requirements of the business. Redundancy should not be used as a ‘back-door’ method of terminating the employee because of performance, behaviour or other reasons of displeasure.

If you select a position for redundancy primarily because the employee is on parental leave, this would be regarded as discriminatory and expose your agency to a potential claim for unfair dismissal or adverse action.

Here’s a practical example. You determine that one of four sales positions needs to be made redundant. One of the sales team is on parental leave. It would be discriminatory to select the personal on parental leave if that selection is primarily based on their absence from work. Rather, the criteria for retrenchment should be based on skills, experience, training and performance as compared to the current and future needs of the business.