Voluntary redundancy choice...

[Naetha]

Can any of you offer me some advice on what I should do?

I'm currently on maternity leave, due to go back in the beginning of January, part time 3 days a week. DS already booked in to nursery etc.

I've just found out that of my team of 4, there are two redundancies coming up. I'm one of the more experienced members, and been at my company the longest (and believe I give a good contribution), so I'm fairly confident that I would retain my position.

However, my employers have just moved office, and it will take me 3 hours a day travelling time, which due to DS's nursery hours would mean I would have to work reduced hours anyway as well as loads of travel time.

In this economic climate, I can't see myself getting another equivalent job, but I don't want to fight for my position, go back part time, then hand my notice in 2 months later (not getting any severance pay) because the commute and nursery hours don't work.

Any advice greatly appreciated!

[Housemum]

Would you take redundancy? When I had DD2, I was 5 mths pg when found out my office was relocating to London - I was allowed to take VR as it was considered beyond "reasonable" travelling time, particularly as I worked part-time and had school runs/childminder to consider.

Do you have any idea what your package would be? I had been with my company 16 years so got enough to repay the remainder of my car loan which was an instant £250 a month saving to start with, and a few thousand "emergency" money (which didn't actually last that long...). I took a part time evening job to fill in a bit of the gap, until we were managing without my old salary and then without the evening work too.

[Naetha]

I've worked there for 4 years, and I doubt they'd go much above the statutory requirements - maybe a little more to keep me sweet so realistically I'd get a payout of about 6 weeks wages, which doesn't really add up to much, but it's better than nothing at all.

The problem then becomes about getting another job - because of the cost of childcare, I'd struggle to find a job that pays well enough to make it worthwile, but to be honest, the thought of not going back to work long term scares me! I was actually looking forwards to it!

[flowerybeanbag]

If you were asking for redundancy why would they need to 'keep you sweet'? I think you need to work on the assumption that it would be 4 weeks pay only, capped at £330 a week.

If you feel you wouldn't be able to get another job and are scared at the thought of not going back to work, plus you wouldn't get a big payout anyway, I'm struggling to see why you wouldn't at least go back, see how it goes, and look for something else if it doesn't work out.

Just in terms of the law, if there is a group of 4 people, 2 of whom will need to be made redundant, if one of the 4 is a woman on maternity leave, she must be given a post as a priority. So even leaving aside the other factors you mentioned, you would not be selected, so you'd have to ask.

[Naetha]

I've decided not to go for the voluntary redundancy, as the job market is just too rocky at the moment.

On a slightly separate note (with the legal issue aside, as my personal consultation is still going ahead), I am currently in the process of being diagnosed and treated for Adult ADD (attention deficit disorder) and I believe this has affected the quality of my work in the past (in terms of attention to detail, concentration at work, and amount of work produced relative to amount of effort put in). I've never mentioned it before, is it something that I should bring up in the consultation? I believe that the treatment I am likely to get would greatly improve the quality and quantity work I do.

[flowerybeanbag]

Yes. If there is an issue like that which is or might be affecting your performance, you should mention it. This will give your employer the opportunity to make allowances for past problems if necessary and appropriate, and will allow them to support you in getting your treatment sorted for the benefit of everyone.

[Naetha]

Well, I had my individual consultation, and it's fairly clear that it would be me that would be made redundant.

Essentially, they were trying to offer me a "suitable replacement" position, which is equivalent to what I currently do, but I have no real interest in the subject area, and very little experience. Although I wouldn't need any formal qualifications, it would require significant training to get me up to speed on this job.

However, as technically, my old job would still be there (only 2 of the 4 positions are being made redundant), then would they have to offer me my old job back, or would I have to take the other job being offered?

[Naetha]

I don't know if this is at all relevant as well, but one of the other people that is up for redundancy in my pool is someone that was recruited after I'd said I was pregnant and going on maternity leave, and was there to cover my absence. Obviously had the economic climate been better she wouldn't have been asked to leave once I retured, but as it stands, it seems a bit sneaky.

I'm fairly certain that it won't say anywhere about her being there to cover my absence, but it was mentioned informally a few times in meetings.

[flowerybeanbag]

How long have you been on maternity leave naetha? And when you say you are due to go back part time, are those your original contractual hours or have you negotiated new ones?

[Naetha]

I stopped working at the beginning of December 2007, but my mat leave started on I think the 18th (I took 2 weeks leave beforehand). My mat leave will then end on the 19th December (I guess) but I will have another 2 weeks leave before returning to work on the 5th January.

My original contractual hours were 37.5 hours a week, but it was decided that I would return to work 3 days a week - 22.5 hours.

[flowerybeanbag]

Ok well that's going to be the issue then.

Your argument would be that the other job isn't suitable (which it sounds as though it might not be, as you would require additional training and don't have relevant experience), and that there is a suitable alternative available in the form of your old job.

However as you want to go back on different hours, they would argue that there is no suitable alternative available on those hours, as your old job is (presumably) a f/t job.

Was it a formal flexible working request you put in? When was it agreed, and was it agreed on the basis of doing your old job in 3 days, or a new job?

[Naetha]

I didn't put in a formal request, no. I discussed it with my line manager and we agreed that 3 days a week was acceptable.

Yes my old job was a full time job, but this other job is advertised as a full time job, just I would do part time hours (if you get my drift). They didn't see this as being an issue.

[flowerybeanbag]

Ok so it sounds as though your hours might not be an issue.

But if there's a pool of four of you, and there are two positions on offer, you must be offered one of them, and clearly the one that is your job already is the more suitable of the two.

I would go back to them formally acknowledging what was said in your consultation meeting, and pointing out that as a woman on maternity leave you are entitled to be offered a suitable alternative where there is one. Outline why you feel the alternative you have been offered is not suitable, and highlight that the other role available is in fact completely suitable as it is your own job. Ask them to confirm at their earliest convenience that you have been allocated this role.

They might insist on allocating it to you on your old t&cs, which is fine. Accept that, then once that's all confirmed and the role is definitely yours, then put in a proper formal flexible working request. It will be difficult for them to refuse as it has already been agreed on an informal basis.

[Naetha]

Just had an update on this - I sent an email saying this last week:

Following on from the one-to-one consultation that took place on Wednesday 19th November, I am letting you know my understanding of how the legislation relates to maternity leave and redundancy.

As a woman on maternity leave, if my position is made redundant, then I am entitled to be offered a suitable alternative where there is one. However, as there are still two positions available in my current role, then it would seem appropriate that I should be offered one of these as a priority.

In addition, having examined other roles available within xxxx, and within the greater xxxx company (including xxx), the only other position that could be considered as an alternative, is the position of Consultant with the Environmental Due Diligence team. However, from an understanding of the job description taken from the xxxx website, I believe this role is not suitable for myself as my experience and skills set are significantly different from those outlined in the job description.

My current role (of which there are two positions still available) is in fact completely suitable, as it is my own job.

Please can you confirm at your earliest convenience that I have been allocated this role.

If you have any comments or queries, do not hesitate to contact me. The easiest way is either by email to this address, or to call me on my mobile phone, xxxx.

And this is the response I got:

The xxxx redundancy policy does state that the company would investigate and discuss any suitable vacancies in the xxxx business with you. However your role has been placed at risk of redundancy alongside the others within your pool and therefore these are existing and occupied roles for which the proposal is to reduce the number of consultants in your pool from 4 to 2, these are therefore not vacancies.

What should be my course of action now? I'm guessing formal legal advice.

Also, I'm going to appeal against the scoring system they used, as for much of the time I was pregnant, and due to the side effects of pregnancy, (I had crippling headaches and bad morning sickness) my work was not of a standard that I believe reflects my capabilities.

[flowerybeanbag]

Don't worry about the scoring system - the whole point is, as a woman on maternity leave, the scoring system should not apply to you anyway.

If there is a pool of 4, and there are 2 posts available, at least one of which is suitable for you, you must be offered it. Simple as that. You can't be made to compete with other members of staff in a pool. If there's a job there, it's yours.

I'm sure they are following their own policy, but there is no policy in the world that contains every single bit of legislation relating to a subject.

Write back to them quoting the following passage from the Equality Human Rights website:-

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"If an employee on maternity leave is to be made redundant (for whatever reason) and there is a suitable available vacancy, the employer must offer it first to the woman on maternity leave. This is a rare case where legislation requires a form of positive discrimination. If an employer does not comply with regulation 10 of the Maternity and Parental Leave Regulations 1999 (MPLR) an employee will have a claim for automatically unfair dismissal under the ERA s 99.

Regulation 10 of the MPLR 1999 states:

This regulation applies where, during an employee's ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment.

Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with paragraph (3) (and takes effect immediately on the ending of her employment under the previous contract).

The new contract of employment must be such that -
a the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and
b its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract."

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So, if they don't follow Regulation 10 of the Maternity and Parental Leave Regulations 1999 as above, you will have a claim for automatic unfair dismissal under the Employment Rights Act 1999.

Then quote the following:

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"An employee who is made redundant whilst on maternity leave will also have a sex discrimination claim:

-if there is not a genuine redundancy situation but it is used as a pretext to dismiss her for reasons relating to her absence on maternity leave or because she has a baby. It may be difficult to prove this unless, for example, her job (or similar job) has been given to someone else; or
-if she is excluded from the normal redundancy procedure, such as being consulted, due to being on maternity leave, or
-if she is made redundant when there was a suitable available vacancy which, but for her maternity leave she would have been transferred or promoted into. "

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In other words, if they give your job to someone else as part of a redundancy programme, and, should you not have gone on maternity leave you would not have been made redundant (because you would have been placed in that job), then you have a sex discrimination claim as well. Here is the page with those passages.

[Naetha]

Thanks FBB - you're an absolute gem

[Naetha]

Hmmm, just remembering my chat with a member of HR this morning, she implied that the crux of the argument was that yes, they were obliged to offer me vacancies, but as the two remaining posts would be filled, they would not be vacancies, and they could not be expected to offer me a filled position.

On the sexual discrimination note...well that's a bit of a contentious issue really. I made a post ages ago www.mumsnet.com/Talk?topicid=employment_issues&threadid=399555-previously-passed-over-for-promotion- appraisal-tomorrow#8129425 about my frustration of not getting promoted when I felt it was due. Needless to say, I was not promoted, although the reasons why were never really made clear. It was hinted at (although never formally mentioned - my manager is too clever for that) that I would be returning to work in January to a likely promotion. I'm fairly sure that this promotion would have taken me out of the pool that is currently being considered for redundancy. Also, a colleague of mine was promoted from the same grade as me to a senior consultant in May when I was on maternity leave, so I wonder if that is something that could help me. Although not certain, I'm fairly sure that had I a) not been pregnant, and b) not been taking a year's maternity leave that I would have attained that promotion.

I just wish it would all go away - it's stress I can really do without!

[flowerybeanbag]

But if there's a pool of 4 people, and 2 will be made redundant, then that implies there are 2 vacancies to be filled by the other 2 people, no? 4 people competing for 2 vacancies? Including one position currently filled by you anyway, although temporarily covered by someone else.

Unless there are vacancies to be filled there's no need for a pool of people to select from. If they are just making individual specific jobs redundant because those jobs are not needed, that's one thing, but if they are selecting people from a pool, that means there are x number of jobs to be filled from y number of candidates. The point of the legislation is that you as a woman on maternity leave can't be made to go through the selection rigmarole of comparing skills, attendance, disciplinary record or whatever to work out who gets the jobs on offer.

What selection criteria are they using?

[Naetha]

Not exactly sure what criteria they are using - I was marked for things like personal impact, teamwork, communication etc. There were 6 fields I believe. They are scored independently by two of my managers - my line manager, and a more senior manager.

From what I'm aware, there's no need to provide evidence, it's all arbitrary, although I'd need to check.

[flowerybeanbag]

Ok well if people are being scored for selection that means there are vacancies to fill rather than specific posts being made redundant. If there is a post suitable among the ones being filled by people from the pool, then you should be placed in it rather than being scored in a competition with others for jobs.

[Naetha]

Ooh, just found something else as well - on the selection matrix they printed out for me - was there bright and bold:

Selection criteria period - 12 months.

I've only been in the office for 1 out of the last 12 months.

Ha!

Anyway, going to see a solicitor this afternoon to formulate a plan of action and see what the best thing to do is.