Redundancy 1 week after colleague returned from maternity leave

[neverhadanymarblestolose]

Been informed today that my company want to make me redundant and they have offered me a (slightly) enhanced package if I go quietly. I've got an appointment with a solicitor on Thursday, but my mind is racing and was after some advice before then.

Worked there for nearly 11 years. There was me and 2 others who worked alongside each other, doing same type of role as each other but for different areas of the business. One of the other 2 went on maternity leave in December 2016 and they returned on 9th January, worked for 4 days then went off sick and then came back in today. So she'd not really been given any responsibility or told what she would be doing.

When she was off, the three roles were merged into two that me and my other colleague have done for the past 13 months.

I was told today in a meeting with my head of department, that the company is stream lining and that there isn't enough work for the three of us, so they are offering me redundancy. If I don't accept it, they said the three of us will have competency testing to determine who to make redundant.

My AIBU is, is this legal? My returning colleague effectively being given my job? It's not that any part of my role is changing, it's just there is now 3 people in a team and they only have work for 2.

Thanks for reading. It's been a pretty shit day and my head is spinning.

You're part time. Your role and contract are not the same as theirs. You solely are up for redundancy. Take it.

Trinity, my understanding is that both the OP and one of her colleagues work part-time. Only one works full-time.

Hi OP, I’m an employment lawyer.

PPs are correct when they say a role is redundant, not a person, and when conducting an open redundancy consultation process, usually all employees would be pooled and scored against objective criteria, with the lowest scoring employee being made redundant. However I would add that they can’t pick you just because you’re part time as that would be less favourable treatment because of part time status and therefore unlawful.

HOWEVER. Your employer CAN select one of the three employees and have a “protected conversation” with them, with a view to offering a settlement agreement (which is what I suspect has happened here). Those types of conversations can’t be used in support of an unfair dismissal claim in future, as they are inadmissible in court.

If you’ve been selected as one of the three, then your employer is telling you fairly loudly (and lawfully) that you’ve been provisionally identified as the most likely employee to be made redundant IF they went through a formal consultation process. So you could turn down the settlement agreement, return to work, and still be fairly made redundant by your employer in a months time (and you would be prevented from even mentioning the fact that they approached you first, because an employment tribunal isn’t permitted to listen to evidence of protected or without prejudice discussions).

As a bare minimum, you should negotiate for pay in lieu of notice (paid gross if your contract allows it), redundancy pay, and pay for the amount of time it would take to go through a fair procedure (probably a month). However, if you’ve been selected because of part time status, I’d be asking your lawyer to pursue your loss of earnings and potentially also a figure for unlawful discrimination. They might say no, but they might also realise you won’t go quietly.

If you don’t get the minimum amounts above then you’ve really got nothing to lose by turning it down and getting made redundant through the usual channels.

NWQM - we weren't consulted about the 3 roles being split between 2 when my colleague went on maternity leave. But that's how my company has always tended to work, things change all the time and you are just expected to accept it as the new normal and be happy that you still have a job.

My colleagues haven't been told anything. My other colleague messaged me and asked if I was ok, as she obviously saw my manager go and get my stuff for me (they offered this, I was allowed to go and get it myself, but I was a mess from crying and didn't want to go and get it myself).
I told her I wasn't ok, but that I'm not allowed to talk about it. So she will know what is going on even if we can't talk about it.

Yes, sounds to me like a settlement agreement so outside of requirements for a redundancy process. (the co paying for your legal advice is what makes me think this)

Yetanother has given good advice above. You still have room for negotiation on the deal if they think you won't go quietly. But it does sound that they have identified you are the one to go.

This doesn’t seem correct to me. Woman on maternity leave have the most protection in the workplace. Even if they are dreadful at their job they will not be the person offered redundancy because , as tootired says above, it leaves the organisation open to an unfair dismissal claim.
However, if you both work the same hours, I think the fairest thing if to go through re-applying for your jobs.

Some things to think about - could you negotiate for a better deal? That sounds like an opening offer to me.

If you can negotiate, would you be interested?
How easy would it be to find another position, that gives you similar hours.
If you go through the re-application and you are successful can you/would you be able to work the appropriate office hours, because I suspect that’s what they will ‘advertise’ for.
There are specific calculators for redundancy pay based on years of work and your age. The first part of redundancy pay is, I think I’m right in saying, tax free. Be clear about how much you are entitled to. ALso are you being offered redundancy or voluntary severance. Many organisations have enhanced rates for VS over redundancy.
Talk to your union, and a specialist solicitor. Check your facts. I have know people get a greatly enhanced deal by using a solicitor. However I also know mothers returning from maternity that have jumped at redundancy, I wonder if this Would be the case with your colleague?

I am surprised that they have given you garden leave as that smacks of a done deal, which is putting them on dodgy ground. W
good luck, try to keep a clear head, which is difficult as this is a very emotive situation .

If there is more than one of you doing the same job they have to put you all at risk and go through the selection process. If they don't do this they are risking an unfair dismissal claim. You need to decide what you want, do you want them to go through the process and justify choosing you, or do you want more money to go? If you are seeing a lawyer anyway, at their expense I hope, you will be able to get advice on what questions to ask to encourage them to come to an agreement with you. You're going to need to challenge the process.

LadyLapsang - other part time colleague is 42, I'm 35 and full time mat leave returner is 33.

If you do decide to accept the package/negotiate a better deal, remember to ensure they pick up the tab for legal advice, which is normally restricted to reviewing the settlement agreement contract and ensuring it is a fair deal.

The solicitors fee tends to be around £200 to £350 but better out of their bank account than your's.

Also, ensure you agree in advance how they will word any employment reference. This tends to be a bland ref including dates of employment and job title, but make sure it's enshrined in the settlement doc, exactly what they will include. This can be helpful especially if the agreement is worded as a confidentiality agreement, because it means they will be contractually obliged not to deviate from exactly what they put in the document, otherwise they'd be in breach of contract.

Use the gardening leave to get your cv in order and see if there is anything out there.

Yes you get normal pay until the termination date and accrue holiday. The solicitor will explain the settlement fully though.

The OP isnt on garden leave.

An employer usually sends an employee home on paid leave when a settlement agreement is offered as they are legally required to give them ten days to consider it. There’s nothing stopping the OP from rejecting it and returning to work after their thinking time has expired.

YetAnotherNC2017 - the settlement offer is standard redundancy that I'm entitled to, paid notice period and a 45 day enhancement payment.

I accept that they clearly want me out, as hard as that is to face. So I'm wondering how likely it is that I can get an improvement on their offer, as it doesn't feel very generous for them wanting me to go quietly.

The first part of redundancy pay is, I think I’m right in saying, tax free

Yes indeed, the first £30,000 is tax free.

Brilliant Mistake outlines it well.

You haven't been made redundant. You have been offered a package. If you don't take it they will go through the process. You may then find that you keep your job. Or not.

The maternity thing is a red herring as far as you are concerned. She has as much right to her job as you do to yours. There are two jobs and three people. One of you has to go. Sorry. at least you'll get something.

I took redundancy from a p/t job at a time when my team was being reduced from four people working various hours to just two f/t roles.

All of us were given the option to apply for the two f/t jobs.

As it happened, one colleague and I both decided we didn’t want to do the f/t roles so we both accepted redundancy instead.

It seems only fair that they would offer you the same but as expert PP has pointed out, the chances are it will probably be you that doesn’t get the job. However, for all they know, one of the others may prefer to take the redundancy?

This does sound a bit odd, OP. I understood that there had to be a consultation period when a role is no longer needed. Me & my colleagues had this when redundancies were first announced and we then had our performances assessed. This was taken into account alongside absence history, punctuality records, skill set etc and that's how they decided who was to go.

I'd also be unhappy in your position; being kicked out in favour of someone who has been on leave for more than a year. I guess your employer was scared to have fallen foul of the maternity legislation.

I'm glad you have an appointment to see a solicitor. Take along info about the offer and also ask whether you'd have grounds to bring your case to an employment tribunal should you feel forced to leave; I believe there's no £1200 charge anymore. The solicitor might have some idea why the company is wanting to avoid the usual process. You might also have to consider whether you can find a comparable or better job quickly. Also, would you still want to work at that place if you were to stay?

If it was me, and the offer was only slightly more than the statutory minimum, I'd be inclined to say get knotted and take my chances with the redundancy process. You have a whole years' performance behind you to be assessed upon. You've shown you can be flexible in taking in the work of a colleague on a lengthy leave etc. However, no-one here can know the politics of your office, whose faces fit etc etc.

Best wishes to you, OP. I felt sick to my stomach when redundancies were announced and my situation was nothing like as personal as yours is.

There are issues around making people redundant whilst on maternity leave, but from what you say this colleague is returning from sick leave rather than maternity leave. Clearly the roles have been reduced to two, and I guess it wasn't an issue while there were only two people at work, but it is a bit nasty not to let you all know that this situation would arise when the colleague came back. If you don't want to leave, you need to push for the roles to be opened to competition between you. It may be that one of the other two would be quite happy to take a package and go. If you have a union, ask for advice, or phone ACAS. Remember that you can always take someone into meetings with HR ( I don't think they even have to be in your company, and they don't have to be a union rep). In my experience it was really helpful, when you're stressed you can just forget what was said really easily, so great to have someone there making notes.

So the mat leave returned came back on 9 January, but you refer to the three jobs becoming two while she was still on mat leave. When did they make the decision to get rid of one role, from when did they state that change would be implemented and when did they inform the three of you?

No its not legal

A role must be made redundant not a person
If you and one of the others are both part time and do the same role they need to consider you both in the pool
The fact the other woman has been on mat leave is not really relevant as she's been gone for more than a year from your OP so it not entitled to her role back
They need to enter into meaningful consultation with you and try to find you an alternative role etc
If they have put you on gardening leave this is pre emptive of the outcome of the consultation and is unfair

Go see ACAS

LadyLapsang - before she went on mat leave, me and the other colleague were shown how to do parts of her job, as we were told they weren't recruiting any maternity cover.

Around 2 months after she went on leave, the responsibilities of the two roles were jiggled around again in to what they currently are.

During my colleagues 12 months maternity leave, I also took 4 months maternity leave (I returned in September). They did get cover for my role whilst I was off and I returned to the same role that I left.

I thought (from very limited experience) that they would have to offer you all the option as you are in the same role. All three would be given the option to apply for the remaining two roles.

OP, similar happened to me a couple of years ago. I had worked for a company for 10 years, my amazing boss went off on maternity leave and I held the fort when her cover turned out to be beyond incompetent. My boss then decided she wasn't coming back, the temp was let go, and the hired someone s new person made friends with a PA from another department, she secretly got her trained up on my job, once she qualified, I was made redundant.

It was all so dodgy, I argued for a better redundancy package, which I got in part and I left. It was the best thing that could have happened. I had started to hate that job anyway, it was stale, I was getting nervous of leaving after being there so long....

I took a few months out just to relax, and then got the first job I applied for, more money, more holiday, flexible working and traveling all over the world. This may be a blessing, I've spoken to many people who have been made redundant after being somewhere a long time, and I think all of them said i turned out for the best.

Do speak to the union. You can contact them directly. They will then assist you and fight your case if necessary.

I know of that being done before and basically a compromise agreement was reached which was actually very good financially.

Would not of happened without the union.

If you return less than 6m then they need to give you the same role you had. (Your scenario)

If you return before 1 year but more than 6 months then they need to give you same role or similar level as the one the person had before leaving.

Both scenarios are legal and protected. The leave can’t be used as a negative point when in a pool.