@Wellibobs12
I am 5 months into my maternity leave. I work in a school and there has been some restructuring due to funding issues. My role is being deleted. There are two of us who do this role but only me on maternity leave. They have 'ring fenced' myself and the other member of staff for 2 roles. One which is very similar to my previous role and a second which is very different. I have registered my interest in the similar role and told my boss that I am not interested in the other. Both roles are full time and previous to going on Mat leave I was working part time.
I would like to know if I should be offered this role or if they are justified in asking me to apply (myself and the other member of staff are both interested in the same role.) I have read advice which suggests that I should be given priority over the other member of staff because I am on Maternity leave. I also want clarity on whether they can call me in to interview when I am on mat leave. I feel strongly that I am at a disadvantage because my head simply isn't in 'work mode' and I would struggle in an interview at present. If it does go to interview and I'm not successful am I then made redundant? The new role is also at a lower grade and lower pay than I was on previously although my salary has been protected for 2 years. I would appreciate any advice on the matter.
Thank you.
Please let me know where I send the details to. I would really like some clarification and I am struggling to get through to the maternityaction line.
Hi Wellibobs12,
I’m sorry to hear that you have been affected by redundancy. As you say, individuals on maternity leave have certain protection in a redundancy situation. They are not protected from selection and can still be made redundant, however, you may have a right of first refusal for the alternative role you mention, which I will talk about more below.
As a quick bit of background, it sounds like both you and your colleague who performs the same role have been provisionally selected for redundancy because that post is disappearing. As such, I’ve assumed it is not, for example, the case where 2 out of 4 people doing the same job are at risk, and that as such there was no scoring process carried out to decide who fell to the bottom of the list (if there has been and some people doing the same or similar role to you have not been placed at risk, you might want to think about whether the scoring was carried out fairly, and for example, they didn’t mark you down for reasons connected with your maternity leave). It could also be relevant to check that your employer was right to single out the role performed by you and your colleague. If others do a similar job to you, then you may want to ask why those others were not included in the “pool” of people at risk.
Assuming there is nothing untoward as explain above about how you have ended up at this point, we now need to look at how to approach the new roles. In particular you asked:
Should I be offered this role or are they justified in asking me to apply (myself and the other member of staff are both interested in the same role.)?
If you are absent on maternity leave at the time of redundancy, you will have a right of first refusal for any “suitable alternative vacancy” if such a role is available, even if you are not the employer’s first choice. The role must be a “suitable alternative vacancy” for this protection to apply. The role which is very different to your current role is unlikely to fall into this category so the question is whether the other available position, which is similar, could be.
To be classed as a “suitable alternative vacancy”, the work involved in the new role must be suitable, appropriate and the location and other terms and conditions not substantially less favourable than in your current job. As the alternative vacancy is at a lower grade, lower pay and full-time as opposed to your current part-time job, it might be argued that it is on substantially less favourable terms and therefore not a “suitable alternative vacancy”. On the other hand, the fact that it is full-time might make it more favourable as your hours would not be cut, albeit on a lower pay. It is therefore not clear whether this available role is a suitable alternative that you should be given first refusal on, or whether it is different enough to be equally open to you and the other member of staff at risk of redundancy to apply for. It is then in your interest to be able to show that the role should legally be classed as a “suitable alternative vacancy”.
Your employer might already have classed it as a “suitable alternative vacancy” and perhaps just wanted to ascertain your interest in the role in the first instance before offering the role to you as a priority. It might be worth you raising this with your employer, explaining that you understand the role is a “suitable alternative vacancy” and checking that this is therefore going to be offered to you, whilst being prepared to explain your reasoning.
Can they call me in to interview when I am on mat leave?
That’s a difficult position to be in. If the role is classed as a “suitable alternative vacancy” then you are not required to go through an application or interview process where the other member of staff is not protected and you have the right of first refusal. However, if the role is not a suitable alternative and is therefore open for application then you may need to apply in the usual way. Legally there is no concrete answer on asking you back in during maternity leave for this purpose. In practice, if an interview process is required, your employer would have to give you sufficient notice and should ask you to use a Keeping In Touch (KIT) day and pay you for it (assuming the other candidate is attending on work time). If you have used up your 10 KIT days, then that could cause a problem because technically working on an 11th day would automatically terminate your maternity leave. You should also explain that you will be disadvantaged as a result of your maternity leave and no longer being in work mode. Ideally the employer would then factor that in, and certainly if they don’t you could argue that they discriminated against you on grounds of sex/maternity leave. If you are breastfeeding you may need to flag that too in case it impacts on you attending interview. It would be discriminatory if they took into account the fact that you are still on maternity leave as a reason not to offer you the role.
If I go to interview and I’m not successful am I then made redundant?
Yes, if you do interview for the role (due to it not being a suitable alternative) and are not successful then you could be made redundant.
The new role is also at a lower grade and lower pay than I was on previously although my salary has been protected for 2 years.
You would still retain your continuity of employment. Otherwise, the new role would essentially be a new contract and so the terms and conditions are allowed to differ. Be mindful that, in order for the role to be classed as a “suitable alternative vacancy” and for you to therefore be automatically offered the role, you may find yourself arguing that the terms are not substantially different.
While I have flagged some discrimination concerns, I suggest raising these issues positively and working with your employer. You are keen to be offered the new job and so want to encourage your employer to offer you it either automatically or after interview. If they are not amenable to these suggestion you can then consider whether it is necessary to be more forceful about the discrimination angle/appeal against their decisions/raise a grievance (formally or informally) or pursue your rights in the tribunal. I recommend trying to get this resolved amicably. A word on timescales though: if your employment does end by reason of redundancy, you have 3 months from the termination date to start a tribunal claim process via ACAS.