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Put at risk of redundancy while on Maternity

(17 Posts)
JJnewday Fri 03-Jul-09 19:59:36

Hi,
I have been researching this and it seems that there have been a few threads on here where people are going through similar situations, so I have learnt alot from you knowledgeable people already. Hopefully if I outline my situation someone will be able to help me with my specific queries.

Situation:
Whilst of sick (with Pregnancy related illness) I received a phone call from my manager informing me that following a restructure of my department and to realign with the business they would be reducing the number of people in my current positions from 4 to 3.

I was informed that we would go though a consultation period where were were able to ask questions etc etc.... then we would go through a selection criteria to decide who the successful candidates would be, originally this criteria was based 70% on a presentation. This was later changed as they could not make me come in to do this presentation (reason I was of sick was high blood pressure and was told to avoid all stress). They amended the selection criteria to 80% based on appraisal score and 20% on sickness record. ( I would argue that this seemed unfair as the must have known who was going to be unsuccessful before they even started the process, but that's another story).

This dragged on a bit and by the time they completed the selection criteria I was already on maternity leave. I received a call to tell me that I was the unsuccessful candidate and I have been selected for redundancy. But that my 28 days consultation would not start until I return from my maternity leave.

I have been reading lots of threads concerning whether they should or should not have done this and whether the position is classed as a vacancy or not. We were all put through the selection process and the job title has not changed, the only thing that is different is that I worked part time and all the new positions are full time. I originally asked about whether these positions would be available part time and was told should I be successful that would be reviewed then.......all this aside....I don't really want one of the jobs (too stressful etc)... But what I do want to know is this.

If I return from my maternity and they offer me a new position that I am happy with then brilliant everyone is happy!!

If they don't can I then raise a grievance stating that I believe I should have been offered one of the vacancies (my current role) without it going through the selection process, or as it will be a year later (when maternity leave ends)will I be out of time.

I guess my question is do I have a time frame in which to raise these concerns? and if so do they start from now on the when my consultation period starts(at the end of my maternity) when I return to work? DO my rights change if I return after Ordinary Maternity Leave of Additional Maternity leave?

Lastly does any one know what kind of compensation you could be entitled to if you take a company to a tribunal, someone told me it is a minimal amount so barely worth doing...but I have no Idea.

Phew...that's it I think hope it makes sense any help would be greatly appreciated.

Thanks

trixymalixy Fri 03-Jul-09 20:09:58

Firstly, they can't count your pregnancy related illness in the same way as normal illness, that's blatant sexual discrimination.

Secondly you need to get this sorted now rather than leaving it for a year.

I think as you were on maternity then you should have been offered one of the positions as a priority, but I'm not 100% sure because of the timing of it.

You really need to phone the CAB for some proper advice, or if you are in a union get advice from them.

flowerybeanbag Sat 04-Jul-09 15:44:54

So you had a consultation period, the selection criteria were proposed, amended, finalised, then applied, and as a result of those criteria you have been made redundant, is that right?

What's all this about another consultation period when you get back from maternity leave? What's that for? What are they consulting you on? It sounds like consultation has already taken place, selection has already taken place and as a result you are redundant. Have they confirmed that? If the restructuring has taken effect and you have not been selected for a position in the new structure and no alternative position offered you then you are redundant now, surely? Have you been told how to appeal the decision?

As trixy says, if your pg-related illness was counted when assessing attendance for the selection, that is unfair and sex discrimination - pg related sickness must be disregarded for things like this.

Whether you should have been offered one of these positions without having to go through selection is a separate matter. You have read the debates about what constitutes 'available' in these circumstances so I won't rehash it. But whether the positions are 'suitable' is also in question. 'Suitable' means the same or no less favourable terms and conditions and work that is suitable for your skills and experience. The fact that these new positions are full time and you currently work part time means your employer could certainly say they are not 'suitable' alternatives and therefore they have no obligation to offer you one.

Whether they are justified in doing that, removing the part time option, is another question, possible not.

I do think you need to take more detailed advice than is possible to give on here, but if you believe you should have been offered one of those positions you need to deal with it now as there are strict timescales involved if you want to bring a tribunal claim - you have 3 months in which to do so, and you should appeal the decision first.

In terms of compensation, it depends. Unfair dismissal compensation is based purely on financial loss, so if you get a new job by the time you would be returning from maternity leave, your financial loss will be minimal if any. Sex discrimination compensation is not limited to financial loss only so might be a bit more depending on circumstances.

You need more advice really, there are loads of things you mention which may or may not be important and more detail is needed to give decent advice tbh. Are you in a union?

JJnewday Sat 04-Jul-09 18:06:40

Thanks for your responses. Just to be clear, (I used the wrong wording!)

My consultation does not start until I return from Maternity leave. What I have already been through is a 'Consultative forum' - where we could ask any questions we had.

So my consultation period of 28 days upon my return will be where they try to find me alternatives.

However as I went off on my current contract and they have not yet made me redundant does that not mean they 'have' to find me a suitable alternative?

Sooo...if my consultation does not start until I return does that mean the 3 months to raise a grievance would start from then?

flowerybeanbag Sat 04-Jul-09 19:27:39

You've already had consultation. That was when they proposed the new structure and discussed selection criteria with you all. Then they had the selection and decisions were made.

Regardless of whether anyone thinks those particular posts were 'suitable alternative vacancies' or not, by not allocating you one of those, you are redundant from your job, which means that as you are on maternity leave, they must now offer you anything else which is suitable and available. If there is nothing suitable and available then you are redundant.

Seems to me they might be trying to delay giving you a definite decision and acknowledging that you are redundant until you come back from maternity leave so that they are not obliged to offer you something else in the meantime.

I urge you to take some more detailed advice about this. As a decision seems to have been made you need to get it confirmed so that you can appeal it if necessary.

foxinsocks Sat 04-Jul-09 19:35:27

'Seems to me they might be trying to delay giving you a definite decision and acknowledging that you are redundant until you come back from maternity leave so that they are not obliged to offer you something else in the meantime'

that's quite interesting, didn't realise they could do that but I suppose there's nothing stopping them just letting you come back then making you redundant

JJnewday Sat 04-Jul-09 19:37:18

Thanks flowerybeanbag - does that mean that they won't have to offer me something when I return from maternity?

To be honest as I don't want that position but I do want 'a' position I don't want to rock the boat.

I spoke to my boss and he said I am sure there will be something you can do by the time you come back , but they have stated that I can take my redundancy payout at any time. (Which I won't do as I currently get a car allowance which is not part of the redundancy settlement - so would be mad to go now)

It's so frustrating just want to concentrate on having bubs not be worrying about what is going to happen in a years time.

flowerybeanbag Sat 04-Jul-09 19:39:32

You are right they can't do that. The relevant piece of legislation giving women on maternity leave extra protection says that if a woman on maternity leave is redundant she must be offered a suitable alternative where one is available, starting the day after her previous job ends. Not keep her hanging for months and months jobless.

So they have to give the OP either a job or confirmation of redundancy so that she can deal with the situation accordingly. By refusing to confirm either way they are denying her her right to appeal the effective redundancy, and because there is a short timescale for sex discrimination claims, if she sits around until the end of her maternity leave and then brings a claim about something that happened months previously she may well have difficulty.

flowerybeanbag Sat 04-Jul-09 19:44:32

x-posts previous one was to foxinsocks

JJ as you will see from my previous post they are supposed to offer you something starting when your previous contract ends, in other words you shouldn't spend any time jobless. I think they may be trying to get round this by delaying the decision, but I think you could challenge this quite easily now if you wanted to. But if there isn't anything suitable (which the jobs you mentioned may or may not be) then all that will do is confirm your redundancy.

If you don't want the position that hasn't been given to you, but do want something, regardless of whether it's 'right', you may feel it's better to hedge your bets, wait until you're due back and there might be something for you then, and if not, you will still get your redundancy.

it's frustrating and as I say they are not acting in accordance with the law in one or more ways, depending on more detail that can't be gone into here, but you do also need to think about what end result you want, and how best to get it.

foxinsocks Sat 04-Jul-09 20:06:17

is good to see you back. I really didn't mean to push you off the site. Am very sorry about that flowery.

flowerybeanbag Sat 04-Jul-09 20:07:36

Oh don't be daft! It's fine. Couple of weeks off did me the world of good anyway... Thanks

flowerybeanbag Sat 04-Jul-09 20:08:41

Oh, and sorry to you too, I didn't stick around to explain or qualify what I'd said obviously, but certainly didn't mean it in the way you took it.

foxinsocks Sat 04-Jul-09 20:10:29

well I certainly over reacted. Was very silly. I should have known you didn't mean that and you know, your advice is very valuable to the site!

I know so many horrible nanny employers and I just really shuddered at the thought of someone like you thinking I might be like that <very silly of me>!

anyway ,all forgotten and I'm glad you're back

flowerybeanbag Sat 04-Jul-09 20:11:25

JJnewday Sat 04-Jul-09 20:28:53

Thanks Guys - so if as you say I hedge my bets and wait for something at the end of my maternity - where do I stand if what they offer me isn't something I want to do can I then bring up concerns...as technically I don't start consultation until I return. In fact the letter I received actually says....

'After a period of collective consultation, with the staff representatives from the national forum, an objective selection criteria was agreed and applied to the positions. This resulted in you being selected for redundancy'

As you are currently off on Maternity leave, we will commence formal consultation with you upon your return to work, where we will formally consult with you and look to redeploy you within the company.'

My Letter concerning Maternity leave with was received before the above one says 'upon your return from Ordinary Maternity leave you will be entitled to return to your original position with the same terms and contractual entitlements.

Also what if they don't offer me anything at all!!!

flowerybeanbag Sun 05-Jul-09 15:56:56

If you want to bring up the specific concern that you feel you should have been offered one of these positions I think you really need to do it now.

What your company should have done is either offer you one of these two positions (and I'm not prepared to say definitely without more information about the positions whether they should have done that), or offer you something else suitable (which I assume there isn't available at present), or if nothing suitable was available for you, confirm your redundancy.

It seems that they are confirming your redundancy, but proposing to keep you employed as you are not working anyway, with a view to hopefully redeploying you later. Although I think this isn't what they should be doing (at least not without your agreement), it's entirely possible that it's done from very genuine motives to try to retain you if at all possible. It's also possible that it's the best thing for you anyway.

If they are unable to find you something later and confirm your redundancy, you could still appeal it and potentially claim unfair dismissal. You have a three month deadline for that as well, but as your termination date will be much later, that would be fine. The problem is if you later want to complain on sex discrimination grounds that they should have offered you one of these jobs now, it may not be possible, because that action is taking place now, so the timeline is starting now.

Although obviously I feel all employers ought to do the correct thing legally, when advising private clients at work and people on here, I never just automatically advise people to complain about something for the sake of it. I advise people to evaluate the situation they are in, work out what the best possible outcome could be, and work out the best way to get it.

In your case, if you appeal now, which you have a right to do, and do it on the basis that you should have been allocated one of those jobs, assuming having taken proper advice you still feel you have a claim on them, one of two things will probably happen.

1. You might get one of those jobs allocated to you.

2. You will get your redundancy confirmed immediately, with no hanging around to see if there is something else.

You don't want outcome 1. Outcome 2. will give you a definite answer, and you can take it further if you want to.

If you accept what they are telling you, and wait it out, there is a possibility they will be able to find you something else. If they can't, you will get your redundancy anyway. If you then want to appeal the decision/bring a claim you could consider doing so but it might be hampered and any compensation might be less due to the delay in one of the crucial aspects of the case.

I can't tell you what to do obviously, and more detail would be needed for more in depth advice and analysis of any potential case. But do think carefully about what you want when deciding what to do, that's my key piece of advice.

JJnewday Sun 05-Jul-09 20:48:50

thanks flowerybeanbag, for taking the considerable time you obviously have to help me out - I do appreciate it. Thanks

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