Made redundant on maternity leave whilst expecting second child. Need a good lawer

[barbosska]

Hope someone could help to guide us in the right directions.

After 17 years of working for a bank in London my sister, whilst on maternity leave, was told that her contract will not be extended as the bank is moving some of their operations, including her job, abroad.

Her 17 years of service consisted of 9 annual daily rate contracts, followed by a 5 year fixed term contract extended by another 3 years.

They've said she is not eligible for any redundancy pay, as she is not a regular employee, so her fixed term contract will just come to an end and will not be extended.

She is also expecting her second child and notified her employer, but this did not change its position.

She has applied for 3 newly announced positions in her department but was not offered any of them ( I suppose because she is pregnant, although they have of corse said that other candidates had more experience).

Under UK law she would have been protected, but this particular bank is not subject to UK Law, but a subject to an International Administrative Law.

She has applied to the internal grievance committee, which has come back with a list of tricky legal questions and so we are frantically searching for a lawyer with experience in International Administrative law, not UK employment law, because the bank is immune from it.

He maternity leave is unpaid and lawyers charge 400+VAT/hour, so are not affordable. Are there any charities which can help?

So if anyone has any idea, please kindly get back to me. thank you

For others: Top Tip - if you have to google it, don't post on Legal. OP will have done that already, and you're not offering your own advice.

Unfortunately we've been saying that for years and the responders on these types of threads are still 95% non legal "googlers". I often say "I'm an employment lawyer" but then anyone on an internet forum could say that anyway without needing to prove it (I am an employment lawyer though - brownies honour)

In UK law the end of a fixed term contract can be a redundancy situation (former HR worker here and I was never quite sure why myself as this was before the 4 year rule came in!) but I'm not aware of the legal situation as it applies to your sister here.

When you say her maternity leave is unpaid, does she not even get SMP/MA - does she pay UK tax and NI?

I doubt there will be a charity for international law! If there are any Universities near you, they sometimes run a law service through their students so it may be worth enquiring there.

This is unlikely to be something university students can deal with.

Hi OP, what is it that you are trying to fight with a lawyer? The fact that she is being made redundant while pregnant, or the fact that she won't get any redundancy pay?

Under UK law, it is not illegal to make someone redundant while pregnant or on maternity, as long as this is not the reason for the redundancy / other roles not being offered. Sometimes a legitimate reason is used as a cover-up, which makes it nearly impossible to prove that the real reason for redundancy is pregnancy.

I am finding it hard to believe that UK employment law does not apply. Is she employed by a UK legal entity? Is she paid by a UK payroll, paying UK tax and NI?

Assuming UK law applies, not all of the 17 years of service would count towards redundancy. The time she spent on day rate would be classed as self employment, so you need to discount this. When her 5 year contract was extended by 3 years, was there a gap between the end of one contract and the beginning of the next, even if it was just a week? Any break in service would reset the "clock", so that for redundancy purposes only the last three years would
need to be counted.

The funny thing about fixed term contracts is that in terms of statutory redundancy payments, you have the same rights as a perm employee. This means that if continuous employment ends after 2 or more years, despite the fact it is fixed term, you still have the right for a redundancy payment. You can calculate the statutory amount here www.gov.uk/calculate-your-redundancy-pay

Best case scenario, you are looking at just under £4,500 statutory redundancy payment.

Her 17 years of service consisted of 9 annual daily rate contracts, followed by a 5 year fixed term contract extended by another 3 years.

Is she self employed? Does she pay her own tax etc? Is she paid from the UK/ in GBP?

It is possible to work in the UK yet be subject to another jurisdiction, it's not unusual (though certainly not common) in banking, and in the maritime industry. It can often work in the worker's favour.

She does need to seek advice from a specialist solicitor.

Depend on the supervisor Cloudtree. Our local Uni has a (busy) law service and does teach international law so it would be worth asking IMO. I doubt charities would cover international employment law though.

My guess is that the employment arrangements mean that OP’s sister has not had to pay UK tax. So not entirely to her disadvantage. No idea on the redundancy question though.

Depends on the superviser

Its clearly a complex legal case which requires the review of potentially complicated and unclear documentation and a specialist knowledge of employment law (probably in both jurisdictions). I'd be seriously concerned if a university helpline service was dishing out this sort of advice.

Thank you very much for all you responses and ideas.

To answer the various questions raised in the thread and give more clarity:

• my sister is on maternity leave with her first child

• she is also pregnant with her second child

• the organisation she works for is the kind of World Bank, United Nation etc.

• she is employed in the UK and performs her duties in the UK and is paid in GBP

• she is not paying UK tax, she pays internal tax of that organisation

• she does not have NI number and does nto pay NI contributions

• she is not eligible for Statutory maternity pay/ benefit or any other benefit.

• the company has immunities from UK law, including UK employment law, therefore unfortunately there is no protection in case of redundancy on maternity leave which exists in UK law.

-CAB and the other organisation are unable to have as they have no experience with International Admin Law, they can only advise on UK law

• university student is a good idea but unfortunately is not a workable one as even practicing lawyers are often unfamiliar with the International Administrative Law

• regional firms are cheaper but have no clue about International Admin Law

• she is a fixed-term permanent employee, meaning she has exactly the same rights in all aspects as permanent employees (holidays, sick-leave, bonuses, attendance of training, pension) except for the fact that her contract has an end date ;

• in technical terms yes, her fixed term contract will naturally come to an end, it is not being terminated in the meaning of a term which is used for permanent employee. So technically she is not being made redundant in legal terms, but in substance she is being made redundant after 17 years of service due to outsourcing of operations abroad.

• there was no gap between her 5 year contracts and its 3 years extension, it was automatically extended. In fact, in her 17 years of employment all her contracts were renewed and extended automatically without gaps between them. In total there were 13 renewals/extensions.

• the fact that she worked for 8 years on fixed term contract does not help again, as the bank is immune from UK law

• the bank did not extend her contract to accommodate her maternity leave. In fact her maternity leave was cut short by about 3 weeks to coincide with the end of her fixed term contract

• she has no home insurance

• we are fighting that after 17 years of service her contract comes to an end when is is on maternity leave. New pregnancy clouds the situation further, I agree, but the first two were the main ones.

• she has applied for three newly created positions and did not get any. She wants to either get a new job in the bank or be paid a redundancy/settlement pay.

So, as was said in the "Apprentice said" the search for the expert lawyer in International Admin law continues...

You need specialist advice from someone specialising in this kind of law. She would have protection under UK law, but you seem sure that doesn’t apply.

Sorry I have never come across international employment law (not to say it doesn't exist!) Im just throwing out some ideas in case it helps with further thoughts.

I have come across special cases of employees working in one country, and their employment being covered by the laws of another jurisdiction. Does the jurisdiction that the employer is based in require payment of redundancy?

What have they done in terms of pension provision? In a number of places, employees receive a statutory end of service gratuity instead of a pension. But it is also in lieu of redundancy payment. Could it be possible that she is due a gratuity payment?

Call the law society for advice on which lawyer can help. But this is really specialist complicated stuff - she is going to have to pay for proper advice.

Does her contract say it is subject to international admin law?

The cases I’ve been thinking of apply to diplomatic and state immunity rather than “international admin law” but I really would be surprised if a charity or organisation offering free advice could help. I’m not sure it’s going to be at all straightforward to unpick but it’s perhaps worth knowing that in UK law individuals can be liable for unlawful discrimination, not just the employing entity

www.kingsleynapley.co.uk/insights/blogs/employment-law-blog/diplomatic-and-state-immunity-landmark-supreme-court-judgments

Maybe worth a read.

regional firms are cheaper but have no clue about International Admin Law

They might be able to instruct a barrister for an opinion? Obv still hardly going to be cheap but still might be cheaper than instructing London solicitors throughout.

At the risk of being boringly repetitive, she needs to pay for advice.

This is incredibly niche and I doubt anyone on here is qualified to comment on what her rights might be if she’s not subject to U.K. employment law.

At the risk of being boringly repetitive, she needs to pay for advice

Yep I agree she need to either pay up for advice or let it go. It’s too complex to fudge. I honestly think she might even need a barrister

Well that sounds like a shite company to work for tbh

This kind of advice is not and never will be free. She's going to have to pay up and even then, the news is probably not going to be good.

How has she lived here so long and has no NI number?

Oh I don’t know @ballsdeep - I bet she’s been paying less tax than she would if subject to U.K. tax and NI, and I bet that regardless of that, she’s been using the NHS, protected by U.K. police, would send her children to U.K. schools etc.

I'm an international lawyer (albeit not an employment lawyer) and I have no idea what "International Administrative Law" might be referring to.

I agree that she needs to pay for advice and use somewhere decent. This isn't a run of the mill employment question.

I think it is exempt from UK law as it is kind of like working for an embassy when in the embassy or its employ you are like a citizen of that country so employees at for example the USA embassy in london would be paid in GB pounds but would not generally be subject to UK taxes ( this is why embassy staff don't pay the congestion charge)
if embassy employs a UK person and resident as a cleaner for instance then that is different but US employees in the embassy even when outside the embassy are immune from UK law ( in practice the USA would not claim diplomatic immunity from some charges but they could) but it is like her workplace isn't technically part of the UK so she doesn't pay taxes or NI it will be governed by employment law where it is from
but there is no way this is going to be cheap it is a specialised area
these are only my ideas I have no knowledge of this type of law
No-one can advise you apart from a specialist lawyer or she has to just let it go which I think is probably the best

I think it is exempt from UK law as it is kind of like working for an embassy when in the embassy or its employ you are like a citizen of that country so employees at for example the USA embassy in london would be paid in GB pounds but would not generally be subject to UK taxes ( this is why embassy staff don't pay the congestion charge)
if embassy employs a UK person and resident as a cleaner for instance then that is different but US employees in the embassy even when outside the embassy are immune from UK law ( in practice the USA would not claim diplomatic immunity from some charges but they could) but it is like her workplace isn't technically part of the UK so she doesn't pay taxes or NI it will be governed by employment law where it is from
but there is no way this is going to be cheap it is a specialised area
these are only my ideas I have no knowledge of this type of law
No-one can advise you apart from a specialist lawyer or she has to just let it go which I think is probably the best

sorry re double post!!!