Employment Lawyer? Please help me

[redcat453]

Hello, I'm currently on Maternity leave awaiting the arrival of my first baby. I'm 40wks + 1 day. I received a letter a couple of weeks ago saying that the company I work for is going through a re-structure and we all have to re-apply for our jobs. There's currently 11 people in the company and they're cutting that down to 5 (There are 4 people in my department and they are reducing to 2).

I have spoken to ACAS about this and they have advised that if there is a position suitable for me to do I should automatically be offered this above everyone else. The MD is obviously unaware of this (or hasn't had any advice about this and doesn't know about the correct procedure)

I replied to the initial letter saying that I would be interested in applying for both positions and could they send me the details. I received these in the post this morning and they want me to make an appointment to go in for an interview this week! There is no way I can go in when I'm about to have a baby... I could go into labour anytime in the next week or so and I really don't think I should be put under pressure to apply for a job.

I'm at a stage now where I almost want them to make the mistakes and make me redundant so that I could get a claim in.

I just don't know what to do? I don't want to call them, I want to do everything by letter/email so it's in writing. But I could do with a helping hand on what to write in the letter. I basically want to say that it's impossible for me to go into work at this stage as I'm about to give birth and should be resting. Is there any other way I could apply for the jobs without going in? But I want to write it in a formal way so that I'm doing everything right.

Has anyone got any advice on what I should do? I'd really appreciate any help.

Many Thanks

[TDiddyIsaMan]

sorry that I cant help but have you seen this thread. Perhaps you could work your question on that thread.

Hope you get some answers. Not very nice that employers is stressing you at this time

[Cosette]

From what I've read on here previously (mainly from FloweryBeanBag), you don't have to apply for the roles. If they are suitable for you then they have to be offered to you first as you are on maternity leave. Have a look through some of the older threads in this section, and you should find some useful information/links, and hopefully flowery will be along later.

Hope you are ok, it's bad timing for you...

[RibenaBerry]

The first thing I would say is that the additional rights for those on maternity leave are not particularly well known. Small employers in particular are often not aware of them.

What I would therefore suggest is that you point your employer in the direction of the direct.gov website (sorry, bit of a hurry or I'd find you a link) and remind him that you have the right to be offered any suitable available vacancy.

Provided you aren't actually making the woman compete with other candidates, there isn't necessarily anything wrong with interviewing - it can sometimes be the best way to work out whether a position is 'suitable' (i.e. whether the woman could do it). However, in your case an interview isn't really practical and I suggest you politely point that out to him (presume he doesn't have kids, or it's so long ago he's forgotten what it's like...).

Of course, if you're desperate to bring a claim, you could stay quiet and let him potentially make the mistake. However, you might get the vacancy anyway and always bear in mind that claims are long, stressful and generally unpleasant. I'd focus on not getting to that point. If you actually want to leave, there's also nothing to stop you gently suggesting that you'd take a voluntary redundancy package if the opportunity came up.

[flowerybeanbag]

What Ribena said. I would be surprised if your employer knows you should be given preference for available vacancies. Even big employers get this wrong and even if your MD has actually taken some advice, depending on the quality of the advice and on the information he gave the advisor and the questions he asked, it's still perfectly possible he doesn't know. So don't hold it against him unless and until you have pointed out the requirement and given him the chance to put the situation right. The chances are he might be horrified to find out he may be discriminating illegally. He probably thinks treating you exactly the same as everyone else is the safe thing to do.

The relevant piece of legislation is the Maternity and Parental Leave Regulations 1999, Regulation 10. This is handy information aimed at employees. This is a Businesslink page aimed at employers which you could forward to your MD.

I'm concerned that after a couple of weeks and without even pointing out their mistake, you are at the stage of almost wanting them to get it wrong so you can make a claim. As Ribena said, making a claim would probably be horrendous, quite frankly, and not something to be aiming for unless absolutely necessary, particularly given you are about to have a baby. Is there more going on that is causing you to feel like this?

Instead I think you need to focus on what outcome you want. If you want one of the new jobs, you have every right to point out this legislation to your employer to ensure that you get allocated one.

If you want to be made redundant, I would suggest you write to your employer, pointing out the legislation saying that you are in fact entitled to be offered one of the jobs, but saying that you would be willing to consider voluntary redundancy instead.

[TDiddyIsaMan]

RIbena and Flowery you are great IMO.

best wishes

[flowerybeanbag]

That's lovely tdiddy, thank you.

[RibenaBerry]

Aw, shucks

[redcat453]

Thanks Flowery and Ribena.

I'm not sure that I do want to go back. The bosses (husband and wife with 2 kids of their own) have been a bit awkward throughout my pregnancy.

I never got a risk assessment done. They were a bit funny about me taking midwife appointments (mine were at the hospital at 3.30 and I had to leave at 2.30 to get there. By the time my appointment was over it wasn't worth going back to work. We finish at 5.30) I was told to make the appointments either first thing in the morning or last thing at night - not possible! The last appointment at the hospital was 4pm and was always taken when I asked for it. I was told to 'be bolshy with them and tell them I couldn't make it any other time" There were other comments from the receptionist too (because there were 2 of us in the same department who were pregnant) "I do feel sorry for the boss having to pay for 2 of you" with regards to our maternity pay and holidays.

I had some bleeding at 28wks. I hadn't had any bleeding throughout my pregnancy and was obviously worried... more so because I hadn't felt the baby moving. When I spoke to the midwife she advised me to take the day off work and rest up - which is what I did. I had my wages docked for this even though they knew why I had been off and the wife boss had me in her office the day after I came back into work asking me if I was ok and to let me know "she was thinking of my yesterday" Bit of a kick in the face to find my wages docked for this

You'd think have 2 kids under the age of 10 that they'd be more understanding?

You can see what I'm up against. I was contemplating going freelance after my years maternity and not going back to work so (and I know this is quite bad!) if I can get a claim in and it's worthwhile then I'd be more than happy to 'play dumb' and let them make their mistakes.

Is putting a claim in really that stressful and what sort of figure do you think I'd be looking at getting?

[flowerybeanbag]

You must do whatever you think is right of course. In terms of the other issues you raised, obviously you are entitled to a risk assessment, but that could either be a serious thing, for example if there were risks you were being unnecessarily exposed to and your bosses refused to address them, or much less serious, such as not getting round to doing an assessment. Not getting round to doing one is obviously not acceptable either, but potentially less serious I think depending on the job in question.

Obviously with the midwife appointments they don't sound as though they were particularly accommodating, I agree. But I'm assuming they didn't actually refuse to give you the paid time off you were entitled to, just grumbled about it.

Receptionist comments are not relevant, unless you reported them and the bosses refused to deal with it. They can't legislate for other people's attitudes so it would be a refusal to address it when it was brought to their attention that would be a problem.

In terms of your time of when your midwife told you to take the day off, whether that's acceptable depends entirely on what they normally do for sickness absence. Do they normally pay people who take a day off sick? If they were struggling financially at the time, which seems likely, they may not have been able to afford to pay you for time taken off sick. If everyone else gets paid for sickness absence and you didn't on this occasion, obviously that's much more serious. But if standard sick pay is SSP only, which it often is for small businesses for financial reasons, then not paying you on that occasion isn't a problem. You may have felt that because the absence was pregnancy-related, then morally they ought to have treated you differently and paid you. But in circumstances where they are suffering financially, and bearing in mind trying to be fair to other employees who presumably don't get paid regardless of how genuine their illness is, then not paying you isn't unreasonable.

I'm not going to comment on potential compensation you might get for this, because that's not my area.

What I would say is this.

If you were thinking of not going back to work anyway, then even getting a redundancy payment rather than just resigning later might be a bit of a bonus.

On the face of it, obviously without further information, it seems unlikely that any of the other issues you've mentioned warrant taking legal action. So it's likely to be purely about this one specific requirement they have not followed.

I am all for people taking the appropriate action where employers are behaving badly, of course. However I think where, as seems likely, there is a genuine intention to do the right thing, and genuine ignorance of what is really a fairly obscure and unlikely piece of positively discriminatory legislation, and there is time to put it right, morally you ought to at least give them the opportunity to do that.

If they are in such financial dire straits they are having to cut their staff by more than half, then the last thing they need is big legal bills. If you were to raise the issue and they refused to take further advice, ignored you, or continued on as they were, then absolutely fair enough of course. But keeping quiet intending to take what is possible unnecessary legal action against a small struggling employer just because you can doesn't sit comfortably with me at all I'm afraid.

I am speaking from a slightly biased point of view really, as many of my clients are small employers just like yours. I hesitate to make excuses for employers; as I am constantly saying to my own clients, it is their responsibility to inform themselves of their obligations and to fulfil them, and some employers do treat people incredibly badly. But I do think where there is a genuine mistake (that can quickly and easily be put right) rather than deliberate, conscious or blatant discrimination, then the employer ought to be given the opportunity to put things right if possible. Just as it would not be fair to dismiss someone for a first offence other that in very serious circumstances. Sometimes it's not possible to put it right. But in this case it is.

In terms of how stressful bringing a claim is, it can depend obviously on the nature of the claim and how vigorously it is defended. But it is likely to take a few months at least and really isn't something I'd want to be going through with a new baby unless I had to. You will also need to check your house insurance to see if you have legal cover available to you.

I wish you luck whatever you choose to do. I know you need to think of what's best for you and your family first and foremost but I've just given you my very personal immediate response to what you've said. Best of luck with the baby as well.

[Kafka]

If you are sucessful in a claim for sex discrimination and unfair dismissal, be aware that you will receive compensation for the losses that flow from the discrimination. If you would not have gone back after your baby you will not be able to ask for future loss of earnings and your injury to feelings award for the discrimination is likely to be lower too.

Try to work with your employer to get what you want. Think about writing to them about regulation 10 and that you should be offered one of these positions. If you do that and they refuse it will mean that there is a chance they will put things right. If they do you will have the option of returning to your job at the end of your leave. Many predict the recession is worsening, it may be difficult to find other work. You don't have to go back, you just have the option.

If your employer persist, despite your protestations, and make your redundant it is likely that the fact you have done this will help your claim. You will be in a much better position to ask for future loss of earnings as you will be able to show that you had the intention of returning to work and in addition any injury to feelings award may be higher.

[redcat453]

Thanks for all the replies. Here's a bit of an update:

Firstly, I'm now a proud mummy to my beautiful baby boy

My baby was due on the 17th July, I received a letter from my work on the 18th July with the info on the jobs I had to re-apply for and told that "If I was still interested in applying for the positions to call the receptionist and arrange an interview week commencing 20th July"

I thought this was totally unreasonable, to expect me to go into work when I was about to have a baby... I was already overdue so could have 'dropped' at any moment.

As it turned out I was in hospital from Monday 20th, baby was born by emergency C-Section on Tuesday 21st and I was in hospital until Saturday 25th July. I got my husband to call the boss on Thursday 23rd to explain that I had received the letter but I'd had the baby and would be in hospital for a few more days but would get back to him as soon as I was home.

This was greeted with comments like "I appreciate your situation but I can't be waiting for months for your wife to get back to me.... I need to make a decision and can't do so without interviewing everyone"

I had to do a phone interview on Tuesday 28th July (2 days after I'd come out of hospital!!!!) I had a new baby and was having to prepare for an interview!! I thought this was absolutely ridiculous.

Anyway, couple of days later I received the letter saying that I'd been unsuccessful for both positions I'd applied for with no reasons why?

I have the right to appeal which is what I'm going to do and the deadline is tomorrow!!! So I could do with some advice on the letter I have drafted. Please could you let me know what you think.... and if you'd add anything/ take anything out.

Dear xxxxxx

I am writing to appeal against the decision to make me redundant as stated in the letter from xxxxx dated 4th August 2009.

I have been advised that this is a clear breach of employment law and have grounds for unfair dismissal and sex discrimination because

1. The decision to make me redundant is in clear breach of Maternity and Parental Leave Regulations 1999, Regulation 10
2. I was forced to attend an interview 7 days after a 48 hour labour and major surgery.
3. No reason was given whatsoever as to why my application was unsuccessful.

This has obviously been extremely distressing for me, but I am keen to be fair in this matter. I understand why you need to make redundancies but If the company is prepared to provide financial restitution and a good reference I may consider signing a compromise agreement.

Regards
xxxxxxxxx

Many Thanks guys!!!! xx

[flowerybeanbag]

Congratulations on your new baby.

Your letter is not how I would put it I'm afraid. I would explain Reg 10, outline what the requirement actually is, rather than just mentioning the legislation, and specify how exactly they have breached it, indicating what they should have done.

If you also feel they have not followed a fair procedure more generally, I would outline what a fair procedure is, with references where appropriate, and explain exactly what they did or did not do that made the procedure unfair.

I would also not ask for money or volunteer to sign a compromise agreement personally, especially not this early before they've even indicated how they will respond to your complaint. Saying either of those things indicates to them that you are not in fact unhappy to have been made redundant, you are not particularly interested in your job back or one of these other jobs, and have just seen something in the way they have behaved which makes you think you can get some cash out of them.

If you genuinely want to push them on this, you need to point out exactly what they've done wrong, then leave their response up to them.

[Kafka]

Lovely news about your baby.

Agree with Flowery. In addition the way you have been treated sounds like less favourable treatment on the grounds of pregnancy/maternity leave, possibly harassment and detriment because of the same.

I think you could ignore them to be honest,
if you are made redundant then your claim will crystalise at that point and you can then complain about the events leading up to your redundancy which because of the breach of reg 10 and the sex discrimination will be sex discrimination and automatically unfair dismissal. Enjoy the next few weeks with your baby and wait and see what happens. If you are made redundant you will have three months less a day to lodge your claim at the employment tribunal.

[Kafka]

You probably should appeal the dismissal though, keep it brief and state breach of reg 10, sex discrimination and unfair dismissal. You could also state, if it is the case, that you have felt harassed by their behaviour and that it has been particularly unwelcome because as they know your baby was due on DATE and you have now given birth on the DATE. Keep in brief, calculate your deadline and ensure that your claim is received in time.

Check your home contents insurance to see if you have legal expense insurance, if you do find yourself a lawyer who specialises in maternity rights. Good Luck.