What's your rights regarding redundancy just before you even go on maternity leave?

[Babychamski]

Hi!

Really hope someone can help me. I have read a lot of information around mums being on maternity leave and being made redundant. I understand that any roles that come up at similar pay/benefits, must be provided to the individual on maternity leave.

I also understand that scoring systems to select those who are made redundant and those who remain shoudl not apply to those on maternity leave, on the basis that it is a selection process, and someone on maternity leave should automatically receive preference for the job.

I'm getting there I promse.... So, what happens if you are just about to go on maternity in August, and they then announce team restructure and pool of 14 people are scored to decide who stays. Because I am not yet on matnerity leave, does that mean that they could decide not to give me a role in the new structure?

I'm so stressed about this as although I can't wait to be a mum, mu job has been my life up to now and I'm finding it so difficult to relax when I should be trying to chill out for sake of baby!

Anyone got any advice? Kind regards xxx

[Ifyouinsist]

"I also understand that scoring systems to select those who are made redundant and those who remain shoudl not apply to those on maternity leave, on the basis that it is a selection process, and someone on maternity leave should automatically receive preference for the job. "

There actually has been a lot of debate on this point and it is not that clear cut. I think it would be fair to say that the weight of opinion (with 2 mumsnet exceptions) including ALL those who have been given RL advice on this from solicitors and ACAS says that scoring systems can absolutely be applied to those on mat leave, you can be made redundant under them but you have priority when it comes to any ALTERNATIVE role that may be available.

Not that this helps you because as far as I know you aren't protected from being made redundant until you are actually on mat leave. However you cannot be made redundant because of being pregnant - this would automatically consitute unfair dismissal.

HTH and I am sure others will be along...

[Ifyouinsist]

This may help

www.maternityaction.org.uk/sitebuildercontent/sitebuilderfiles/redundancyfeb09.doc.pdf

[Babychamski]

thanks guys, really helpful, the link was great as well. I'm feeling much more informed!

[RibenaBerry]

Ifyouinsist is totally right. I am afraid that you have no additional rights as someone about to go on maternity leave. You just have the right to be scored fairly along with everyone else.

She is also right about the debate about selection. A thorny issue because, although many advisers will say that selection is ok, there doesn't seem to have been a case to confirm this. The difficulty is that you could argue that, for example if there are five roles being reduced to four, effectively that is four alternative roles remaining and so the person on maternity leave should get priority.

[flowerybeanbag]

You don't have any additional rights before you go on maternity leave, however many employers would be ultra careful about selecting pregnant women because they would rightly be concerned about avoiding a discrimination case so in a way it may go in your favour.

I have to disagree with ifyouinsist's statement that everyone on mumsnet who has taken legal advice about the tricky issue of redundancy and maternity leave thinks the legislation only applies to different jobs, not to the job the woman is doing currently.

I have taken legal advice from several, including very senior and experienced, employment lawyers and have consistently been advised that for instance in the example Ribena gives, with, say, 5 roles being reduced to 4, the 4 roles are both available and suitable, and preference therefore must be given to the woman on maternity leave. The only way these roles become unavailable is if the woman on maternity leave is not given preference.

Of course there may be an element of caution in the advice I've had, as there is not sufficient case law exploring that specific issue, but I do think it's misleading to suggest that there is a consensus of legal opinion the other way, that preference only occurs to new or different roles.

It's an ongoing debate anyway, and doesn't apply to you in this case, unfortunately. Hopefully as I say, your employer will be ultra careful about being absolutely fair because of your pregnancy anyway.

[2cats2many]

I've just been through this process in the public sector.

What happened to me was as follows:

-I was told that because I'd passed my qualifying date, I would be benefit from the same rights that I would have if I was already on mat leave i.e. in any ring-fencing/ redeployment situation, I would get put to the front of the queue ahead of other employees (obviously provided that I was a suitable match for the job).

• If I did decide to take redundancy, the statutory mat pay that I was due would be paid to me in a lump sum in addition to any redundancy pay.

I actually wanted to take the redundancy, so what it actually meant for me in reality was that I found myself in quite a strong bargaining position. The organisation were so worried about tripping up and finding themselves exposed to a sex-discrimination claim, they agreed to pay me significantly more than my statutory due just to get rid of me.

What this actually meant was that I signed a compromise agreement waiving my rights to claim sex-discrimination rather than just taking a straight redundancy.

Hope that helps.

[RibenaBerry]

That's interesting 2cats.

The thing about having the same rights as if you were already off was obviously a policy of your employer, as it's not the law. I think it's a bit risky actually as other employees could argue that it undermined the fairness of their redundancy that someone was given preferential treatment without a statutory right to do so.

In terms of the statutory maternity pay, you are totally right and this would apply to the OP. If you are close enough to your due date, you still get statutory maternity pay. IIRC you need to be at 15 weeks before your due date when dismissed.

[flowerybeanbag]

That's very interesting, yes. I wonder if that's a wide public sector policy or just where you are 2cats.

I have to say if I were an employee behind you in the queue as it were, I'd be kicking up all sorts of stink about that, as there is no need to give you preference for ring-fencing or redeployment as Ribena says.

Yes as long as you are still employed by 15 weeks before due date, you get SMP regardless of whether (and how) your employment is terminated after that.

[RibenaBerry]

Flowery - I even wonder, if that person happened to be a man, or to be a woman past the menopause, there may a case for indirect sex discrimination or age discrimination?

[RibenaBerry]

Oh, and just reading back my first post, perhaps I wasn't totally clear. Like Flowery, I agree that there is a debate on selection, but not that there is a clear consensus one way or the other.

[flowerybeanbag]

Hmm, don't know, could be, as the policy will only ever benefit women of child-bearing age. I think if I were advising either a man or an older woman who had directly suffered a disadvantage as a consequence of that policy I would be advising them to consider raising discrimination as an issue when appealing the initial decision, certainly.

[2cats2many]

I thought it strange at the time too, because I always was under the impression that the special protections were only for women on ML and pregnant women were treated like any other employee. However, the head of HR and their legal eagles were very clear on the point.

They said something along the lines of the fact that recent cases meant that the law was changing. I was just happy to get the cash and run tho'.

[Kitsilano]

Flowery - I was referring to the mumsnetters who are actually in this situation (with regards to selection for redundancy namely Naetha,smittenkitten and 2fedup) when I said wll those in RL who have taken advice. Plus the employment partner and the head of employment law at a big British co who I asked about it.

You and emplawyer are the 2 exceptions on mumsnet who have been advised/believe otherwise.

I guess it isn't clear cut unfortunately for the increasing number of people who must be in this situation.

Good to see you back

[Kitsilano]

meant to post under ifyouinsist!

[flowerybeanbag]

thanks