Hello Grimbles and thank you for your question.
The rules around redundancy and maternity leave are generally as you have said.
· You can still be made redundant while on maternity leave.
· However, you have a right of first refusal for any “suitable alternative vacancy” if such a role is available.
· You have the same right as everyone else at risk of redundancy to be notified about any vacancies: you should tell your employer asap that you do not have access to the vacancies.
If you are a member of a trade union, speak with them as they may be able to assist with all of the steps below. If you have a final salary/defined benefit or otherwise generous pension scheme take advice on the value of this as soon as you can because it can be very difficult to replicate that and as such, avoiding redundancy might be all the more important from a financial standpoint.
What happens in a redundancy situation
There are different ways that redundancy situations can be structured when there is a reduction in headcount, and the employer has quite a lot of scope for deciding how to proceed.
(1) One scenario is that the employer is effectively deciding who is leaving. An employer may be reducing the number of people performing a particular role. In that scenario, the employees in the team either get to stay on in the same role, or they are selected for redundancy. In deciding who to select for redundancy, the employer has to use fair and objective selection criteria. They must be careful to ensure that the fact that you are on maternity leave does not prejudice you in any way. For example, they cannot mark you down for pregnancy related absence. If they are taking into account appraisal ratings from a period in which you were off on maternity leave, they need to be very careful about how they score you. It could still be that even after using fair selection criteria, you fall to the bottom of the list and are provisionally selected for redundancy. Unless another job becomes available in the organisation, you can be fairly dismissed as redundant. You are not specially protected because of maternity leave in this scenario. There may still be other vacancies at the employer that you can apply for but you don’t have any special priority to be appointed into those alternative roles.
(2) Another scenario is that there is a reduction in headcount, but the remaining roles are changing a bit more significantly and the employer is instead deciding who is staying. In that case, all the individuals in a team may be provisionally selected for redundancy, but the employer makes some “suitable alternative roles” available. In that case, all employees can apply for these posts. The employer selects in the people who are going to stay. Those unsuccessful with their application will be made redundant (unless some other role becomes available). If the employer uses this method of selecting into new posts (rather than selecting out) then you (and anyone else on maternity/shared parental leave) would have a right of first refusal on the suitable alternative role even if you are not the employer’s first choice. This is what people tend to be talking about when they say that those on maternity leave are protected from redundancy.
There is then also the middle ground which may match your scenario. In that case the employer is mainly deciding who is leaving, but they have other vacancies available generally in the organisation. It is a bit less clear whether remaining roles are a suitable alternative that you should be given first refusal on, or whether they are different enough to just be equally open to everyone at risk of redundancy to apply for. It is then in your interest to be able to show that a role should legally be classed as a “suitable alternative vacancy”.
What is a suitable alternative vacancy?
What that means in practice can be complex. A “suitable alternative vacancy” means that the work under the new contract is both suitable and appropriate for you in the circumstances; and the capacity and place in which you would be employed, and the other terms and conditions of the employment, would not be substantially less favourable to you than if you had continued to be employed in your old job. This is meant to be assessed objectively (i.e. what would a sensible bystander think), looking at whether, having regard to the nature of the job, “status” or perception of job title, content of the new role, and terms of employment, wages, hours and location, and generally whether the job is a match for you.
Effectively what you are wanting to do is show that the role is pretty similar to your current role. It has to be similar enough that if the employer was to try and require you to take the role, it would be reasonable of them to say to you “we think this role is a close enough match to your current role, that if you refuse it, then you need to forfeit your redundancy payment”. You would then only be permitted to refuse a role if based on your particular circumstances, it would be reasonable for you to do so. If any of the roles on the vacancy list look similar enough to your current post that it seems very odd that you haven’t been automatically offered it, then it could be a “suitable alternative vacancy”. The employer is normally the one trying to convince people that a role is a suitable alternative vacancy in order to avoid having to make a redundancy payment, but it would also be open to you to run this argument. You want to be showing why role is very similar to your current role. However, if it is just that you think you could do the role, despite its differences, then you can of course apply for it, but it is just unlikely to meet the legal test of being a “suitable alternative” that you have priority right to.
Notification of vacancies
There is no set rule about how employers need to tell people at risk of redundancy about other vacancies, but they do need to tell you. It seems like this could just be an oversight, and they may not be aware that you can’t access your work email. They need to ensure that you have the same access to vacancies as those who are not off. If otherwise this would be maternity discrimination (and possibly indirect sex discrimination).
I recommend speaking to someone in your employer’s HR team as soon as possible explaining the situation and that you don’t have access to your work emails/the job portal because you are on maternity leave. You can ask that they forward internal vacancies to your personal email address. You can also ask them to send you on a list of any that have recently gone out that you didn’t know about them. If a job that you think you would have had a good chance at has passed you by, then you may want to highlight this, but the reality is it will be difficult to unpick a recruitment that has already taken place. It is more productive to try to keep them on side, and at least initially give them the benefit of the doubt that this was an oversight. As such, I would recommend raising the concern, but not pursuing it as a formal grievance at this stage as that could create unhelpful formality and an adversarial feel.
If a redundancy is confirmed
In terms of minimum statutory entitlements, if you were to be made redundant, you would maintain your Statutory Maternity Pay entitlement until it runs out. You would also be entitled to notice pay, which will depend on your contract and statutory entitlements. You may also be entitled to a payment in lieu of accrued but untaken holiday (which could be significant if you have had a long period of maternity leave).
@Grimbles
Is anyone able to help me clarify my understanding of the law when it comes to possible redundancy whilst on Maternity Leave? I work for a large company (100+ employees) that has to cut x amount from the budget which means between 2 and 5 people from my team are at risk.
I am currently on maternity leave and from what I've read it says that although I can be made redundant, my employer has to offer me a suitable alternative job if one comes up, and also i have a right to be notified of all vacancies. My questions are:
Who decides what a 'suitable alternative' is? E.g. if there was a job but my employer didn't think it was suitable or that i was qualified to do it, but I believe I would be, what would happen there?
With regard to be notified of all vacancies, are there any rules about how you should be notified? Apparently monthly emails are being sent to work emails but I was not told of this and cant log into my work email anyway. Do I have any rights to complain about this?
Thanks