Employment law question...redundancy after mat leave

[RedundancyAfterMatLeave]

I pay for professional HR advice from a well known HR company. I've had some advice that makes no sense to me at all. I'm going to go back to the company to get a second opinion, because I'm sure it can't be right, but in the meantime, I wondered if any employment solicitors/HR specialists could offer a view on what the law actually says.

The background to this is that we have an employee, A, that has just returned from mat leave. She is very good and we would like to retain her, so this is not about trying to get rid of her to be clear. And hopefully we will secure a new contract that makes this conversation irrelevant.

However, the contract that A works on will be coming to an end soon, and if we are unable to secure a replacement contract, her post will be redundant because that team is the only team that works within that particular specialism. The same applies to the other staff working on the same contract, B and C.

I have been advised that A has redundancy protection for 18 months after mat leave. That's fine, if it means that e.g. we got a contract that only enabled us to sustain one post out of the current three - A would obviously get priority over B & C. (B & C might reasonably feel aggrieved about this in my view, but that's the law so whatever. )

However, our HR adviser has essentially said that we cannot make A redundant under any circumstances, unless the whole organisation is closing down. And that, because of the redundancy protection, we would be expected to make another staff role redundant in a completely different team, even though none of the roles within that other team were actually redundant.

Now, I would understand if we were talking about training A up to fill an existing vacancy in a different team, or budging out another staff member doing exactly the same job but on a different contract. However, this is not what we are being advised.

There are certainly people in the company with comparable roles, and the mat leave employee would undoubtedly have good transferable skills that would be directly relevant to those posts. However, the employee wouldn't have the specialist knowledge that is required to deliver these roles because her speciaism is in the area if her current contract. It would be a bit like replacing a football player with a tennis player iyswim - the general athleticism would probably help, but the tennis player would need to learn a lot before they could become a skilled football player.

Anyway, the HR adviser has said that we would need to make one of these other employees redundant in order to make space for A and if that meant an extended training period in which there was no output from A - we would anticipate about 3 months - then the company (and its clients) would just have to suck that up because A has the right to stay in a job no matter what.

The HR adviser went on to say that this principle didn't only apply to comparable roles at around the same level, and that if it was necessary, we would need to make a senior manager redundant and train this junior employee up to do the senior management role, rather than making her redundant within 18 months of her maternity leave.

I definitely haven't misunderstood the advice that I was given, but surely this HR adviser has misunderstood the way that redundancy protection works? I've tried googling, and all I can find online is that she gets priority over other employees in the same redundancy pool and that she should be offered any suitable vacancies.

Can anyone help to shed any light on this, please?

No, that’s not right at all. This is commonly misunderstood amongst HR professionals (of which I am one) but I’m amazed you’ve been told you’d need to make someone else redundant to give her the role, that role wouldn’t be redundant in that case - the work is still there to do - and the employee in that role currently would have a good case for unfair dismissal. Have I understood that bit correctly?

The protection for maternity does not mean the woman cannot be made redundant. It just means she is entitled to be offered a suitable alternative role should it exist without having to compete for it. You are right, if you get a new contract but can only sustain one role, she gets priority there if the 3 roles are currently the same. If you don’t get a new contract and her role is absolutely redundant with that processed followed, and there is no suitable alternative role, she just loses her job. Yes this only applies to actually alternative roles at the same level, you do not need to fire a senior manager to give her their job, that’s insane advice.

I’d go higher up with your advisor and make a complaint, their advice is wrong but advising you to make another not redundant role redundant to give the job to someone else puts you at risk of legal action against you, really not good.

I dont think they are correct. You can't make someone redundant to make space for them if they are not suitable for the position

https://maternityaction.org.uk/advice/redundancy-during-pregnancy-and-maternity-leave/

Says:

The new regulations provide the right to be offered a suitable alternative vacancy (if there is one) if your job is at risk of redundancy during the periods above. It does not provide any other new rights. It gives you priority in being allocated any alternative roles, it does not prevent you being selected for or made redundant. See Rights during the redundancy protection period below.
If there are no suitable alternative vacancies, you can be made redundant during pregnancy, maternity and shared parental leave if there is a genuine redundancy situation and your employer follows a fair selection process and consults with employees affected. You have the right to any redundancy pay and notice pay that you qualify for, see above. You may also still be entitled to maternity, adoption or shared parental pay.

That is not correct at all. Redundancy protection (which as you will be aware was increased to 18 months from when the baby was born in April of this year ) simply means that this employee MUST be offered any suitable vacancy and has priority over other employees in being offerered any vacancy.

That does not mean you have to make someone else redundant in order to create a vacancy.

ACAS explains it in a clear way https://www.acas.org.uk/redundancy-protection-for-pregnancy-and-new-parents#:~:text=The%20redundancy%20protected%20period%20starts%20on%20the%20day%20a%20period,date%20of%20the%20child's%20birth

But the actual legislation is the Employment Rights Act 1996 & the Protection from Redundnacy etc etc Act here https://www.acas.org.uk/redundancy-protection-for-pregnancy-and-new-parents#:~:text=The%20redundancy%20protected%20period%20starts%20on%20the%20day%20a%20period,date%20of%20the%20child's%20birth

You need a new HR adviser.

Yeah I definitely do! Unfortunately we are locked in a contract with this particular provider for the time being, but we will definitely be switching when the current contract ends. This isn't the first time that I have had cause to doubt the advice that I've been given. I will have to make a complaint about this particular adviser.

@BuffaloCauliflower, you did indeed understand correctly that she told me we would have to make a non-redundant employee redundant in order to make space for the protected employee, who would need to be retrained in the non-redundant role. She described it as "bumping", I think. I also wondered if the employee that was "bumped" might potentially have a claim.

That’s genuinely alarming and I’d make a very strong complaint, they absolutely should not be advising this. You can always call ACAS who can’t really advise but can tell you the law and how it might apply to the situation you’re in.