KEY POINTS:
I went on parental leave in August last year. I am not due to return to work until this August but my employer has now told me I am redundant and I am the only person in my team being made redundant. We all do the same job so I don't see why I should be the one made redundant when I'm not around to stick up for myself. Can my employer do this while I'm on leave?
The Parental Leave and Employment Protection Act 1987 (Act) protects employees in your sort of situation. If an employer needs to make someone redundant, it may be tempting to choose the person who is not there, but the legislation protects employees on parental leave for that very reason. Generally, employees on parental leave can only be made redundant if certain criteria are met.
First, there must be no position available for you which is substantially similar to the one you had before you started parental leave. So if, for example, your employer brought in a 'temp' to cover your work while you are on leave, and that person is being kept on, then your position would still exist. There would not be a real redundancy situation. Likewise, if there is another job available that is mostly the same as yours, your employer cannot make you redundant.
But it may be that your employer genuinely needs to reduce its staff, has no other job available for you and has not hired anyone else to do your job. In that case there may be a genuine need for a redundancy. But your employer would still have to show it properly consulted you before making you redundant. This includes talking to you about the proposed new structure before any redundancy choice was made to give you a chance to comment.
Employers are always obliged to consult about redundancies of course, but for employees on parental leave the Employment Court has said that employers must take 'extra precautions' and be 'actively involved' in consultation. This means you should not be disadvantaged because you are 'not around to stick up for yourself'.
Your employer was also obliged to follow a fair process for selecting you for redundancy instead of one of your colleagues. As part of its consultation with you, your employer should have told you what criteria it would use to select the person who would be made redundant and given you a chance to comment on those criteria. If the reason for selecting you was related to you being on leave then you should make a parental leave complaint.
To summarise, if your job (or a very similar one) still exists, you should challenge your redundancy. Also, if the consultation was inadequate or you were selected because you are on parental leave you should also challenge it. You can do this by making a parental leave complaint.
The process for making a parental leave complaint is similar to that for lodging a personal grievance for unjustified dismissal.
As a start, you should raise these issues with your employer. If your employer insists on dismissing you for redundancy, you could make a formal parental leave complaint. You could contact an employment law specialist or the Employment Relations Authority to find out more about the process.
