Maternity Leave and Redundancy - any advice welcome!

[Sabri]

Hi, everyone, posting this on wife's behalf, she tried to register earlier, for some reason didn't work... we've read some threads on maternity leave and redundancy and appreciate the high level of paralegal advice given here. Anyway, straight to our case.

She is on maternity leave and her job is at risk of redundancy. Company is being restructured. She had formal consultation today, though she was called for an 'informal' meeting last week, before being given oficial letter advising that her role was at risk. She was told the basics on that day and was asked to 'think about it'. She was also given the JD and PS of a job that was being created, 'merging' her role with others.

Today they repeated this to her. She asked for clarification, that there were no suitable jobs available, and that she wasn't being offered tis 'new' position or any other, which they confirmed, while inviting her to apply for this new job. We know fairly well the basics of the legislation, what we need is some specifics and this is where the bug lies:

This 'new' job that has replaced hers is exacly like her current one, with some cosmetic changes and one or two additions. really, it's a 90% match. What doesn't match WAS goin to be part of her role ages ago, and it involved things that she has done and is capable of doing.

She pointed out this to them, Reg10 etc., today. As you'd imagine, they are not stupid, so they have a narrative ready: they say that the new role is at a more 'senior' level, involving responsibilities of manager and director jobs (which are also going, apparently). However, there's no evidence of that in the JD. despite the new role being called '.... Manager', there's no management responsibilities involved at all, and no decision-making at a level bigger than what she currently does (BTW, there's no way they can put much more into her role, which is staying almost unchanged, because they know it's a fulltime role!). They did mention today this other guy and said, he had 'similar skills' to my wife's. He'll be applying for the job, she was told to apply too. There will be tests and interview.

Questions: 1) Can they get away with it? They obviously want to get rid of her, the job is clearly suitable for her and vice-versa, they clearly want this other guy to stay (he's job has completely gone by the way, totally different job). It looks to us as a non-genuine redundancy situation.
2) Does she HAVE to go to the interview? Our understanding is this: they already said that this job is unsuitable for her, otherwise they know they'd have to offer it to her; so, what's the point in going through an interview (distressed, having to prepare, etc. with a 3 months baby, etc.) for a job that by definition has been said to be unsuitable for you (otherwise they'd have to give it to you).
3) Can she claim that she should not be made to go through the interview, but if they offer her the job, she'll be happy to undergo appraisals etc. to check if any training, mentoring, etc. is needed, as part of the natural development of her job?
4) What is the current case law on 'suitability' of job. We are confident that we can prove it's practically the same job. Her role has changed in more significant ways that this one and she wan't made redundant because of that! Also, I guess we can find other JDs showing that, and that they are all at her level. And anyway, even if you take that it's at an ever so slightly higher level (which it's not), after 3 years at the company, and 15 years working in the field, why not give her the job with a promotion?
5) So, does it look like a genuine case for UD and/or SD? What are your thoughts. Advice we've got so far is divided, but the more details we show, the more it is thought like a sham redundancy really.
6) They asked her response by next Monday. is it the time now to write a letter of appeal/grievance, or wait for notice?
7) She is in no condition to attend interviews, etc. (scheduled for next week), nor do we think that she should. How to respond re: that?

Any further comments welcome. My wife feels very agrieved and is convinced that she is being treated unfairly.

Thanks for your patience if you got to this point!!! And thanks in advance for any advice or comment posted.

[Sophie2008]

Hi Sabri,

Sorry to hear that your wife is having a really hard time with her work.
I went through something similar with my employer as they decided to restructure and my job was at "risk". I was part of a union who were great, and i had never done so much reading of the law in all my life.

Anyway, as far as i was told at the time and this was 9 months ago, that as a woman is on maternity she has extra protection when on leave. I was told that i should be offered one of the other roles (which were basically my job anyway) before anybody else. Therefore i think your wife would have to be offered the new role, without an interview!

I would seek from ACAS, Citizens Advice and from the Equality and Human Rights commission. I found the EHRC very helpful for me as well as my union.

i know from when i have previously read through numerous threads about this on here there are some members who will hopefully be able to help you a lot more than me.

I wish your wife the best of luck and i believe her employer is in the wrong.
Good Luck!!

[Sabri]

Hi Sophie, many thanks for your reply, we have just read it. Acas didn't seem to know that much tbh when she rang them, but we haven't tried CAB or the EHRC, and will now certainly do! Cheers.

[Sophie2008]

Another thing i would say, and i am sure you are already doing it, is log everything. Keep a diary of conversations, meetings and phonecalls. Dates and times of them too. And your wife has the right to be accompanied to these meetings by a memeber of a union or another work collegue. I would recommend that there is someone with her in these meetings, just so that they are there as a witness. Especially if it is a one to one.

When my union guy could not attend i asked a collegue to sit in, just so they could not try and bully me on my own.

I really hope it all works out.

[Sabri]

Thanks Sophie. Yeah, you're right. For the last meeting she was accokpanied by a work colleague, and we've started to log calls now, take minutes, etc. She called HR yesterday to confirm that this 'new' position has been advertised to those at risk.

BTW, we have matched her current job description to the 'new' one, and it's a 100% match. It seems blatantly obvious to us that she is being made to apply, at a disadvantage, for HER OWN job! looks like, in view of Reg 10, that totally unacceptable, whichever way the employer wants to dress it.

Thanks for the support and advice!

[RibenaBerry]

I'm afraid that I don't have loads of time this morning, but I wanted to get back to you on a couple of points.

Firstly, what is your aim? To keep the job or a pay off? I have assumed keeping the job, if it's just a pay out you want, you might play it slightly differently.

Based on what you've said, the situation does sound a bit iffy. It doesn't matter if a job is more senior/a promotion (and I know your view is that it isn't), the woman on maternity leave has the right to be offered the job if it is suitable.

However, that doesn't automatically mean that you have the right to be offered it without any interview/selection process. If the job is more senior, it is quite common to ask even the mat leave woman to apply and attend interview. This can be a legitimate way of assessing whether she is suitable for the role. I am not sure that your reasoning at point 2 and 3 holds up. What is not allowed is to make her compete for the role against others. Instead, you assess her suitability, and only if she's not suitable do you move on and look at the other candidates.

In any situation like this, you want to look as reasonable and co operative as possible, and I wouldn't suggest a straightforward refusal to engage or attend an interview. What I would suggest is an email, reminding them of Reg 10 and your view that the role is suitable, indicating that you do not believe that seniority (which you dispute anyway) changes this, but that you'd be willing to cooperate in their assessment process provided they are judging on the correct basis (see above). Then go on to explain the difficulties of attending an interview and ask whether there are other options - e.g. a phone interview, them coming to her, etc.

It's too early to appeal (no decision has been made yet) and I wouldn't suggest a grievance yet. Just keep plugging away at the process.

In terms of case law, I'm afraid it doesn't really work like that. Everything is very very fact specific so only gets decided at a tribunal, not in the appeal courts where things tend to get reported and become precedents. You'd prob need to talk that bit through in detail with your lawyer (if you get to that point).

[Sabri]

RibenaBerry, many thanks for your comments. We take your points, as they sound very reasonable. So, just to develop it, if you have time later...

1. We think there wouldn't be any problem in her attending a meeting to discuss changes to the role, to check suitability, etc., even testing if that is deemed necessary. It's their right to do it, etc. And she will be putting that in writing, no doubt, her willingnesss to cooperate with the company in such times, even in her ML, blah, blah. The issues then become:

a. As far as I understand, she can't then agree to go to THIS interview, as it is officially set in the context of a competition for the 'new' post, since hers is 'gone'. In our view, the whole thing needs to be put differently.
b. Let's say she agrees for that (not a job interview, but an informal assessment and discussion of the new role - bear in mind, her role has changed over the years in far more significant ways that this, and she wasn't made to undergo 'assessments' during that time, she hasn't had any appraisals for 2 years, nor diciplinary action, standards in her role - due to the cover - have gone down SINCE she went on ML!)). Is 'less' than a week reasonable to expect for a ML woman to prepare for such a stressful job-related situation?
c. Then it comes down to the crucial point: If she has to go to THIS (or even any other) interview, what is the point of Reg 10? I am more than sure that you know a lot more about this topic then us, but our gut feeling is: Employer ends ML woman job, creates any other vacancy, does not offer it to her, which means (by legal and logical reasoning), they do not believe the job is suitable (otherwise they are under obligation to offer it to her - unless they know it's suitable, but do not want to abide by the Reg...). She goes for an interview for the job that is already thought by her employer to be unsuitable for her. She scores badly. 'Didn't we tell ya?' The self-fulfilling prophecy comes to mind. 'Let's tinker with the job, so it doesn't look sutable anymore and we'll take it from there'. "Do you have experience of talking to A?" "No, but I've talked to B". Hmm, doesn't count, we need someone who's talked to A. Bang, not 'suitable'.
d. The criteria is the PS - it's roughly the same (as the JD) as the one on the basis of which she got the job 3 years ago. Clearly THEY should have suggested a meeting to assess her suitability in the first place. By not offering the job (well, not yet, but by putting it up for grabs), she's already been prejudiced against. They told her yesterday that they need the answer Monday, because the "others are waiting". How can the selection be seen as fair? So, it's no longer an assessment of her skills to continue in a slightly/barely modified role.
e. Wouldn't her participation in the charade greatly diminish the strength of her claim (assuming she has one and it's relatively strong)? They may then say, "see we thought she wasn't suitable, we were right, look at her score, so she decided to turn vindictively against us, etc." Surely it would make the case even more difficult, as instead of focusing on 'suitability', she'd have to focus on the assessment trap, a lot more difficult to prove, etc. So why Reg 10, if it can't be interpreted for what it says. I remember reading a poster here saying that what it means is a job broadly and in the wide sense regarded as suitable.

Employer may be kicking own legs for having created a 'new' job that looks exactly like hers. But that is no simple error - her job is a FT job by which nature doesn't have to, not can it be changed significantly - it cannot be made a lot more of different that what it is - that's a simple business fact - and we have looked a many similar and more 'senior' jobs, we can't find one instance of a company doing what they are vaguely suggesting they are doing.

So, if she writes a letter saying, I cannot attend an interview on the basis of what has been said, etc., but I would be glad to cooperate with any assessment, etc., regarding my suitability for the 'new' post as advertised, what can happen?

We take the point re: grievance, but are there second opinions there.

Finally Ribena (We REALLY appreciate you time on this! many, many thanks, and sorry for developing so much on what you said), what's the plan B? Her aim is to either be offered the job, or to agree a compromise agreement that would justify her accepting redundancy. We think there's no chance whatsoever of her being offered the job (decision has been made, she feels). So the only thing left is compromise agreement, call it as you wish. The idea is to make the case so clearcut that it puts a doubt in their mind re: what could happen in a ET (an avenue which she may or may not pursue, though it's an option if fairness cannot be achieved outside it).

Cheers and apologies again for the number of characters... as you said, it is indeed down to the specifics and that's the kind of advice we need.

[RibenaBerry]

I'm going to take your points out of order if you don't mind and start with c).

I understand your reasoning ("creates any other vacancy, does not offer it to her, which means (by legal and logical reasoning), they do not believe the job is suitable (otherwise they are under obligation to offer it to her - unless they know it's suitable, but do not want to abide by the Reg...)") but I think you're missing the point I was making slightly.

The Reg says that the job must be offered to the woman, not that it must be offered without them taking any steps to assess suitability. It helps to think of a large organisation which is doing everything right and above board. A job in dept A is at risk of redundancy. There is a job in dept B, with a different line manager who doesn't know the woman. The job is a bit different, but potentially suitable. Manager B is saying "well, I can't say she's suitable because I don't know her and being able to do job A doesn't necessarily mean you can do job B". The obvious way to resolve this is to interview the woman (with whatever degree of formality they choose) and assess suitability. It only becomes a problem if this assessment is competing against other candidates rather than just looking at her suitability (which is not to say you can't do all the interviews together, just that your thinking must run correctly).For that reason, a tribunal would not think an assessment automatically wrong, and that's why you should try and cooperate, even if you think that this assessment is not genuine.

Then taking e):

No, participating does not weaken the claim. Many, many women do not even find out about Reg 10 until after they have been made redundant. Participating does not disapply that in any way or mean that you focus on who is the best candidate. The tribunal would still look at whether the role was suitable and the onus would pretty much be on the employer to show that it wasn't, especially in a very similar role.

Your best bet really is to say "My view is that either a) this job is really my current job without any material changes, and therefore there isn't a redundancy situation at all; or b) I am suitable for that job and therefore it should be offered to me under Reg 10. Because of its similarity to my current role, I don't see that you need an interview to assess that. However, I very much want to keep my job and, notwithstanding the above, I will participate in the assessment process. That said, I am on maternity leave and therefore [and then go on to explain difficulties with attending meetings, etc]. If they do not try and facilitate a way of participating in the assessment process in response to that, it actually strengthens any subsequent sex discrimination claim, not weakens it, because there has been a separate incident of disadvantage from being off.

I don't think a week is inherently too short a time to prepare, although it may be in your specific case if the practicalities cannot be covered off in time. Likewise, the fact that there are other people waiting is not inherent evidence of fairness: if your partner is not suitable for the role, they are quite lawfully allowed to move on to consider other people and it's understandable that they'd want to do this as quickly as possible. The fact that other people are waiting is not a reason to rush it in such a way that your wife cannot participate, however.

I think that kind of covers off your other numbered points. In terms of compromise agreement, keep quiet for now. You wait until the outcome of the consultation, kicking off (very politely) about Reg 10 and suitability all the way through. If made redundant, you appeal the decision and start making noises about a claim. At that point, they will probably iniate a discussion about a compromise agreement. If not, I normally suggest doing so after the outcome of the appeal.

Having said all of that, as an outsider not knowing the in's and out's of the job and industry, it's very hard to assess how strong the claim would be. That's where lawyers come in. Check your home insurance to see if it has legal expenses cover and, it it does, notify ASAP. CAB, ACAS, etc are useful, but normally more on process than strength of claim. Unions may be able to help on strength, if relevant to your work.

Hope that helps.

[Sabri]

Ribena, this is great stuff, very reasonable, esp. with regards to process and procedure, many thanks. Just the one think to clarify your suggested strategy:

Should my wife then say, ok, this is what i think, notwithstanding, I will participate, is it a good idea/interesting/crucial/a big mistake to highlight in the letter that she is, however, concerned that the company already decided that she is unsuitable, in view of the JD., blah, blah, she is concerned that instead of proposing to assess her suitability, they seem to have decided on that and asked her to join a competitive process. Then say, despite this, I will cooperate.

Also, is it necessary for her to give her reasons for your a) and b) above? that is, going into the detail?

Overall, it souds ok, but in my view the same problem applies: they'll continue to say what they are saying and will collect more 'hard evidence' of that in the process, and who knows what else.

(ps - it's not a big company, her new boss will be the same she had when she joined them, he's likely to be the 'interviewer', and he was the one who interviewed her and gave her the job in the first place. I appreciate what you said re: organisational and business needs and circusmtances - it's clear to us that such issues do not apply here!)

[RibenaBerry]

I realise it's not a big company, but I find it helps to think of a big company to work out whether something is inherently dodgy. You can then think about your own circumstances to see if it is ok or wrong in your situation. This helps you assess whether something is always going to be a problem (in which case you just need to say to a tribunal "X happened") or whether it is wrong in your situation (in which case it's "X happened, and here's the background info to understand why that's wrong.").

Nope, I wouldn't say any of that extra stuff. I would say pretty much what I put in my previous post. You don't actually have any evidence that they have decided she is unsuitable - just the fact that they've made her interview and, as I've said, I don't think your reasoning on that point (although I understand it) is a strong thing to lead on. I also wouldn't talk about competitive assessment- you've highlighted Reg 10, they've come up with an answer (albeit one you don't agree with), rehashing old ground doesn't take you forward. Just mark your place on the two points and move on.

Yes, if they don't want to keep her they may well try to collect evidence of why she isn't suitable for the new job. Nothing you can do about that and, actually, returning in detail to the Reg 10 arguments just reminds them to use the right language when they do. I'm afraid, if they want her out, they will always say that she isn't suitable and it's then a question of appeal and negotiation.

Sorry if that sounds harsh and, of course, it's just my opinion.

Oh, one final thing, remember that your wife's job in all of this is to stay as unemotional and professional as possible. The more reasonable you are, the worse they look. If you get emotional and start saying "I think you've made up your mind" and "it's all a sham" it's easier for them to blur the edges of the story and make her look like someone who went off the deep end. I am sure that that's the plan anyway, but it does have tactical merit!

[Sabri]

That's fair enough, of course they'll get rid of her if they want, but if that could be done wholesale, no questions asked, then there wouldn't be Reg 10, I think we can all agree on that.

I think the only issue we have with your points, which we think are very reasonable (and she wants to be and appear to be reasonable), is an issue of timings. We all know what is going to happen down the line, they have made it clear, so why can't she, so they avoid the whole charade and start negotiating asap.

yes, different courses of action have different tactical merits but, I'd imagine, risks. That's what we're trying to assess, and you views have been taken on board with pleasure!

[RibenaBerry]

If all you want is to get out, then by all means start negotiating now. The issue is twofold:

1. Once you start to negotiate, it's clear you won't be staying. That avenue is effectively closed off. That's partly what I meant when I said in the first post that I'd assumed she wanted to stay as her primary objective.

1. You are always in a stronger negotiating position when someone has done something wrong, as opposed to you thinking that they are about to do something wrong (which they can always deny they would have done). The more of these things you allow to stack up before you negotiate, the stronger your position will be. If you negotiate now, they can easily spin it as "you didn't want to be considered for the new role so we're negotiating volunatary redundancy." That's much harder if they've actually stuffed up selection.

[Sabri]

You're right Ribena, no problem about that. on the other hand, my wife is now very stressed out, with a bad cold, I have little to no time to stay with baby in the next 4/5 days, etc., so the time doesn't seem right for her to jump up and say with a smile, 'yuppy, a new position, I'm up for it!'. You'll undertand, I'm sure.

Tactically thinking, we're not thinking about closing doors and starting negotiation. We hope that it's them who will, and she hopes to bring it about.

So what we're now considering is not say, 'count on me for the selection process', but instead, although she hopes to write the letter more or less as you suggest, adding that she'll be happy to discuss the changes to her post, etc., assess her present skills, any possible training, coaching, etc. That is, emphasise the fact that she's convinced that the role has to be offered to her, so let's discuss it further.

The thing is, she's not in a psychlogical state to attend a job interview that she knows will be antagonistic, etc., for the reasons above.

We know of a reported case where the woman didn't cooperate and her claim was rejected. So it's not a good idea to say 'no way', but there must be an in between option.

You're right, they have been very, very careful not to say that they are not offering the post, and whenever she mentioned Reg10, they said, 'oh, of course, you have preference', blah, blah. With the other hand they deleivered the verdict, that the new job is senior, etc. So they are playing the way they need to.

Me think: they will have to, one moment or another, to come clean and say: 'the job's not for you' (and vice-versa). They may say it in an intimidating manner in the context of a selection process, where she'll be at her most vulnerable. Or they can say it in the context of a formal meeting where they discuss the new role, differences, why they are not offering it to her (to say she needs to be assessed wouldn't be as credible in this case as in the example you gave - different department, boss, etc. none of that applies). The result is the same, with less stress (assuming they want to discuss it that way).

Anyway, while noting and taking in you advice, we still trying to think of a way to trigger them into negotiating sooner rather than later (when, with some sham test scores in their hands, they may not be willing anyway).

But now you know more clearly what's at stake. She'll lose this job, period. The issue is, how fair and mutually satisfactorily will it be?

we're really grateful for your time Ribena. Our best wishes!

[RibenaBerry]

Hope it goes well. Pop back if you need to. I'm not always around, but I do lurk!

[abcmum]

Hi,

Sorry it's very late and I have only skimmed all the facts here, but there appear to be some similarities to my case which I won for unfair dismissal and SD. If you would like me to email you my Tribunal Judgement for reference, message me. Other than that I will have a thorough read tomorrow and see if I can offer any more thoughts.

[Sabri]

Thanks abcmum, we look forward to that, sounds fascinating. We'll pass you an email address shortly too.

Another element to the saga: they have all but renamed her job '... Manager', without any significant changes to her JD (if any at all!). Clearly to accommodate this guy, who's already has his title, but who's job the bosses wanted axed. Therefore, and essentially, they'll be paying this guy a lot more to do basically the same job as hers (though we cannot tll for sure as the doc re: this 'new' job doesn't mention salary, by which we conclude it's 'negotiable'. Cue: she hasn't had a pay rise for nearly 2 years, she hasn't had a formal appraisal for 2 years, only an informal discussion over 1 year ago when she received praise (but not raise...).

Is any of that significant? (and BTW, all we're saying here can be shown by fact in a quite straightforward way)