Mothercare discriminates against employees on maternity leave

The Baby Products business Mothercare used a “sham redundancy” to dismiss an employee on maternity leave.

A tribunal found that the retailer unfairly fired Nichola Osborn despite claiming its brand resonates strongly with families around the globe.

After a restructuring exercise, the technical manager of the company sued after being replaced by a man.

Mothercare, who had retained the franchise arm of their business after entering administration in 2019, and trades out of 450+ stores worldwide, fired Osborn in 2021.

She worked at the company from 2016 until 2020, when she took maternity leave.

The tribunal heard that when she was pregnant, she suggested to her manager she look for maternity coverage but was told it wasn’t needed.

The company found that this was “a legitimate decision”. However, later on the new chief product officer of the company began a restructuring and decided to hire a specific candidate to replace Osborn.

The judge stated: “We were not provided with any contemporaneous emails, or other documentation that would have shown how the decision was made to render the claimant’s role redundant.” This is extraordinary.

The tribunal determined that she then began managing her out the business. The tribunal ruled that Osborn was treated unfairly because she had taken maternity leave. It stated “there wasn’t a genuine redundancy”.

It dismissed her claims of automatic dismissal and gender discrimination.

Liz Stevens is the legal director of Birketts’ employment law team. She said: “It was clear from the judgement in this case that it was not possible for the employer to convince the tribunal that her redundancy had been genuine but that instead, the decision was made to get someone else to work in the company during the mother’s maternity leave.”

She said that the court’s judgment was critical of key witnesses who failed to provide evidence and of significant gaps in documentary evidence. The judge referred to the absence of contemporaneous documents describing how the decision was made by the claimant, deeming it “extraordinary” or “inconceivable”.

This lack of evidence was likely to have played a major role in the tribunal’s finding that the dismissal was unfair and discriminatory due to the claimant’s maternity leave. Stevens stated that the case is a reminder to employers of the importance of documenting their decision-making processes and keeping records which can be used as evidence in future if they are challenged.

She stated that, even if it was determined that the redundancy was genuine, the tribunal held that this decision had been made during Osborn’s ‘protected period’. This meant that she would have been entitled to the alternative position of Head of Technical. The protected period was only applicable to the employee’s maternity period at the time the events in this case took place.

Stevens said: “Employers are reminded that the protection period is now six months after an employee returns to work. This was extended on 6 April 2024. If a redundancy occurs during that time, the employee is entitled to receive any other employment before the other employees. The new Employment Rights Bill will also give employees who are on maternity leave additional protection against dismissal for reasons other that redundancy.

Mothercare was contacted to get a comment.

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