surely this is positive discrimation taken too far

[downthedustpipe]

All our department has to apply for jobs at their level. We all know that jobs are going.
I am a level 4 worker and there are 9 people at that level. There is 6 jobs going.
So I would have thought we all have a good go at applying for it by application form and interview and the best 6 win and 3 lose.

However 2 women are currently on mat leave. We have been told by HR and the Union that these women's jobs are guarnteed. They don't have to go through any process and they remain a level 4 worker without having to fight it out with the rest of us. They are doing the same job, same pay, same terms and conditions as the rest of us.

So what we really have is 9 people going for 4 jobs. One has started mat leave and has said she is going to be off for at least a year. There won't be Mat cover.

The team is a mixed sex team with differing ages from 28 to 58.
(not that it makes a difference - just giving the whole picture)
We are a large local authority BTW

What are your thoughts?

I may post this in a different section to see if opinions differ.

mdowdall maybe you can point us in the right direction of these laws then?

My workplace doesn't have laws like the one 23balloons is talking about, but it has active and open policies along those lines, that encompass sex, race disability and even regions of the UK and so on. I think quotas are quite the coming thing, especially in public sector. I think it's common practice among big public sector employers? I wouldn't say it was bollocks, I thought it was pretty normal these days.

Equality Act 2010 and a raft of books about it.

Quotas are illegal and employers caught using them have had to pay out big money to white or male victims. Targets are allowed but in the end if the best-qualified applicant for the job or the promotion is a straight white male he msut get the job even if you miss the target.

It is a common held belief that women on mat leave are guaranteed a job if there is a redundancy situation. The law doesn't actual say that.

Redundancy or dismissal during maternity leave
It is automatically unfair and automatic sex discrimination for your employer to select you for redundancy or dismiss you for a reason connected with:

?maternity leave
?birth or pregnancy
?paternity leave
?parental leave
?time off for dependants

Your employer can make you redundant while you are on maternity leave if they can fairly justify their choice. For example, your employer might close the section of their business that you normally work in and make all employees in that section redundant. Then your employer can make you redundant as well.

However, if your employer makes staff cuts across the company, they cannot make you redundant because you are on or are about to take maternity leave.

If you are made redundant whilst on Statutory Maternity Leave then you have special rights. You have the right to be offered any suitable alternative job in the company. This is even if there are other employees that might be more suitable for the job. If you are offered a new job, you are still entitled to the four-week trial period, which should start when you return from Statutory Maternity Leave.

If you are made redundant or dismissed during your Statutory Maternity Leave your employer must give you a written statement explaining the reasons for their decision. You should receive your normal notice period or pay in lieu of notice and redundancy pay, if you are entitled to receive them.

Are people on travelling sabaticals protected too?

Hiya, what do the pregnant women say about it? and is anyone bearing in mind that sometimes women don't return to work after mat leave is over, will there be consequences from management if these women turn down the guaranteed jobs? btw Good luck when you go for it.

How are women who are off on maternity leave looking after a baby supposed to fairly fight to keep their jobs?

I could barely get myself dressed some days!

Journey - excellent post. Being on ML (or being pregnant) doesn't mean that you are protected from redundance, just that you can't be selected because you are on ML. The company just needs to show that the same selection criteria has been applied to the redundancy pool. You should raise the issue with your HR department.

More info can be found here and here

I was made redundant while on ML, and those where exactly the conditions that applied to me. It would have been unfair to give me an advantage over others in my workplace just because I was on ML.

I do understand why it feels unfair to you, and hope that you succeed in your interviews, I feel for you in your situation.

But the point has been made about women on mat leave being entitled to be offered an equivalent job if there's one available. Surely that would mean in this case that they must automatically be offered one of the jobs going? It seems that your employer is simply following the law, and there's probably nothing to be done about it. Put yourself in their shoes, how would you like having to come into your workplace where you may not have been for months, and try and convince your bosses that you are more capable for the job than someone who is there all the time and is fully up to speed? It wouldn't be fair, so I think the law is right, women have to be protected in law from being unfairly dismissed.

Andrew - seriously? Cripes my employer has definitely breached that, or broken that. And, it definitely has active positive discrimination.

The law isnt right nightowlmostly it is a load of bollocks. All employees, including those on maternity leave, ought to be treated equally in the event of cutbacks. Clearly they arent in this case. That is not fair, end of.

nightowlmostly - no, that isn't the case, because the 6 positions aren't jobs that are going; there will just be 6 people still employed in those positions after the redundancies have taken place. They aren't vacant postition, iyswim.

If there are other available positions within the company, then those on ML should be offered then, but legally they have no special right to be retained above other employees just because they are on ML. They just have the right to have the selection criteria applied to them fairly, ie in the same way that it is applied to the rest of the selection pool. For example, if the company are using Last In, First Out, the company could not select them for redundancy above an employee who has served a shorter term.

OP - you really should raise this with HR, as the company appears to be treating you unfairly. You can also phone the ACAS helpline for free advice on 08457 47 47 47 - the website is here

My sister was made redundant whilst she was on maternity leave. Fairly straightforward in her case, the whole team was being moved abroad so easy for the company to prove no discrimination.

I'm not sure that giving those on maternity leave preferential treatment is the right thing to do. I think the resentment it breeds is damaging in the longer term for women/mothers etc.

tbh there is an undertone coming through from your posts that you are jealous of these womens' pregnancies, are you going through IVF or something?

I'm sure there was a case in the employment tribunal recently brought by a male solicitor who was made redundant because a female solicitor on ML was automatically given the job. He won his case so it seems to me that there is scope to challenge a redundancy process where those on ML are automatically safe. You should bring this up with your HR dept and see what they say.

Sorry to divert from your original thread OP but I have just got back online after going to pick up the kids earlier and felt I needed to reply to the posters who called me bigoted. I certainly am not.

I have been trying to obtain employment in the London regions recently though and many advertisements specifically quote the Equality & Diversity laws (google if you want more info) particularly in education/public sector jobs, whereby the employer must choose the ethnic minority candidate if 2 candidates are equal and the ethnic minority is under represented in the workplace. I have even seen ads appealing for 'black/asian' applicants as they are under represented. Public sector employers have to now maintain statistics and present them to the government and can face penalties if the workforce does not represent the local population.

I am not going to come back and repeat any of this or get into arguments with anyone, I am just telling it as is - as I have discovered since trying to get a job lately. I thought I would point this out to the OP earlier in case it may help her case.

piebaldpony I'm sure you're right.

We (myself and colleagues) discussed the case at a recent board meeting.

I'm almost certain the case was won by the male employee on the grounds of sex discrimination, but I imagine the ruling would be applicable to all, rather than just males as it was with regard to positive discrimination IYSWIM?

Piebald Pony and Shelly Boobs - I was also going to post (without reading everything) that I read about a male solicitor who claimed sex discrimination at an ET on similar grounds to those in the OP's post. I think he successfully argued that using redundancy selection criteria that automatically favoured women on mat leave WAS sex discrimination. Perhaps the OP should get a copy of the transcript and judiciously leave it lying around the office....

Hi OP,

The case that others have referred to is De Belin V Eversheds, where a male solicitor did win an ET case when a female colleague was given an unfair advantage (she had her performance score inflated) as she was on ML. He won because this was discrimination on the grounds of sex as he, as a male, is unable to get pregnant (a point many of you seem to have forgotten when talking about discrimination, apparently it's ok if it favours women?)

I would advise looking up this case and ringing ACAS as previously advised as there is no doubt that what your employer is doing is on very dodgy ground... this is positive discrimination and would be illegal in this case (positive action is not). Although women on ML should not be discriminated against - it is illegal to make them redundant BECAUSE they are on ML, it is not illegal if there is a justified and robust reason. They do not need to be protected and should be on a level playing field to other candidates (for example past 3 years performance reviews).

As an aside, I agree with those who say that females are unequal in the workplace but disagree that protecting women on ML is the right thing to do. Surely gaining equality through unfair advantage rather than merit is not the way to address such a massive issue.

If does seem harsh but if the system wasn't in place the outcome would be less fair.

The situation the OP is in is actually a bit of a grey area - women on mat leave can be fairly selected for redundancy provided their pregnancy/mat leave has no influence on the selection criteria, but they then have the right to be offered any suitable alternative vacancy ahead of other workers. It's an area of debate in employment law however whether the 'everyone reapply for fewer jobs' scenario does result in a suitable alternative vacancy or whether it's actually the selection process - if it's the former, the mat leave people automatically keep their jobs, if it's the latter they can be selected but would have first dibs on any other vacancy in the organisation. But it hasn't been tested in case law so most employers fairly reasonably take the view that they're more likely to be on the wrong end of a discrimination claim if the people on mat leave lose their jobs. It is harsh on those who lose out but as others have said the reality is that women on mat leave already suffer all sorts of disadvantage on the workplace and are in a very vulnerable position, so the law says they have to be protected.

I'd agree with what Piccalilli2 said.

What people seem to missing here is the way in which these anticipated redundancies will be made. Because it is done through a re-assessment process, rather than a straightforward job or relocation redundancy, it's a lot harder to make the women on ML redundant in a fair way. You cannot simply look to her past performance reviews, because you would then be assessing her against different criteria to the non-MLs (OP didn't state what the re-application process entails but I presume there is an interview involved).

23balloons what you are referring to is "positive action" which came into force in April 2011. It's not to be confused with "positive discrimination" as it is still illegal to choose someone with a "protected characteristic" simply because they have that characteristic, but when two candidates are equally qualified and there is nothing else between them, the employer MAY consider the protected characteristic to increase representation of that group. The act does not say they MUST do so. You can measure statistics, but you cannot have quotas.

However (and sorry to anyone with a protected characteristic because I'm about to destroy any hope you once had that this would change things) I can tell you from experience it's a load of rubbish, because who decides what "equally qualified" means? You almost never ever get two perfectly equal candidates - especially since most employers rely heavily on interviews and it's very easy to argue that one candidate was better qualified than another, even if only slightly. It's another grey area of the legislation.. and from the cases I have seen, it has not and probably will not result in any real changes to the way in which people hire. People tend to select other people for jobs who are like themselves.

So in short 23balloons, I believe you are kidding yourself if you honestly believe the reason you are not finding work easily is because you are competing against ethnic minorities. The economy sucks right now - for everyone.

Its one of those situations which is designed to protect women on maternity leave, but which in reality will backfire long term. It does result in those workers who are not pregnant/on ML being treated less favourably. I think in your position, especially given that you're talking small numbers, so those pregnant women represent a large proportion of the people affected, I would band together and speak to HR. They need to realise that trying to protect themselves from a potential discrimination claim could actually result in more problems for the company. Maybe they will re schedule the restructure ?