Made Redundant whilst on Maternity Leave

[Gigiuk]

Hi,

I am currently on maternity leave and I've just heard this week that 'my role is at risk of redundancy' as my team has been disbanded and absorbed into other teams. Although I don't agree with the strategy I appreciate the business decision behind this.

What I don't agree with, is that at the same time, a colleague who does an identical role in the wider company has been promoted. As we are both employed by the same parent company and I've been told by HR that they are looking for any suitable alternative within the parent company, I am unsure why this promotion was not been offered to me first according to my rights of having first refusal on maternity leave.

Two independent employement lawyers have confirmed that if I want to pursue it, I have a case for unfair dismissal. I have drafted a non-aggressive email to my HR representative to ask for more information on my colleague's promotion and why it was not offered to me. Having met my boss and HR rep yesterday, I am planning to send the email next week. This is either an oversight on their part or a calculated risk and I suspect that they will ask to settle privately and get me to sign a compromise agreement. I am more than happy to do this (I don't want the job or the tribunal case, not that I'm telling them that. I just want some extra cash which recognises that after a decade of loyal service I was made redundant on maternity leave and that they should have offered me this job) but my question is, what kind of damages should I be looking at? What might a court award and what would be acceptable out of court?

Many thanks.

But it's a promotion, not a suitable alternative.

Ah, sorry, I should have explained, it's a promotion to a new role, taking on the management of more staff and new responsibilities. It's not just a new title with a bit more cash. Do you think that makes a difference?

Perhaps the other person was a better candidate for the job than you.

Anyway, you haven't been made redundant have you? You role is at risk of redundancy. You've not got a leg to stand on at this point because nothing has happened.

When are you due back from maternity leave?

i think you have to be honest that there are in fact two very diffent issues involved:

1. that a colleague was promoted and you feel that you should have been informed of the opporutnity and given a chance to apply. it would not have routinely been offered to you first - that would be unfair to the other candidate but you should have had the chance to apply.

2. that you are at risk of redundancy whilst on maternity leave.

would you accept normal redundancy terms for 2) or do you feel you are being made redundant because you are pregnant?

if you had the chance to go for interview for the promotion would that satisfy you?

sorry, opportunity

Whoa - I'm feeling a bit attacked here - according to two employment lawyers and the government's website [http://www.direct.gov.uk/en/Parents/Moneyandworkentitlements/WorkAndFamilies/Pregnancyandmaternityr ights/DG_175088] as I am on maternity leave it should have been offered to me first, I shouldn't have to interview:

"If you are made redundant whilst on maternity leave then you have special rights. Even if you do not have the normal two years service, 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"

I totally accept that I am at risk of redundancy whilst on maternity leave but they do not seem to have followed the correct procedure. I had arranged all my childcare after we agreed that I would return in October. Now I'll have to not only change that (agencies are saying I'm unlikely to get 3 days a week as I had arranged with my employer and nursery) but will also have to juggle the challenges of my little one starting nursery as I (hopefully) start a new job. An existing employer is probably more understanding than a new employer if you need to come in late/leave early etc (as long of course you're not taking the p*).

HerHonesty - I feel like I'm being made redundant because I'm out of sight out of mind.

we're not attacking you, i think we are just trying to help you understand what your employers attitude will be, so that you enter negotiations with eyes wide open as it were.

i would be very very surprised if you arent given an "enhanced" redundancy package given you are on maternity. employers are very very reticent to make people redundant because they are afraid of unfair dismissal cases - as you demonstrate, so i would expect some sort of uplift but not knowing your job company salary etc i cant tell you how much!!

again, i think you are confusing the issue of the promotion and the redudancy. yes they have to offer you suitable alternative employment over and above another employee in a redundancy situation - but this is sae -it is a promotion which they will argue is unrelated to the redunancy issue. the two are not related. you do not have any enhanced right over promotion opportunities whilst on maternity leave other than being given fair notice and opporutnity to apply for the post.

Thanks HerHonesty. The company provides us with independent legal advice and as they, and another employment lawyer said I should have been offered the role I'm just surprised that you're saying that may not be the case.

I agree that had they given me 'fair notice' and an opportunity to apply for the post then there would be no issue, but they haven't! It's been awarded and announced already. The first I heard about it was in a company announcement!

I've been offered the company's standard redundancy package, which is "enhanced" ie more than statutory but I haven't been offered anything additional for being made redundant whilst on maternity leave.

I'm a bit unsure as to how to proceed now. Do you think it's even worth asking the question about the role?

They are still looking for a suitable alternative, yes? You are not redundant yet?

I agree that you are confusing two issues. Yes you should be offered a suitable alternative role where one is available as a woman on maternity leave, even if other candidates might be more suitable. But a 'suitable alternative' would be something similar to your current job, on the same or no less favourable terms and conditions, doing similar work, at the same level. Presumably that is what they are currently looking for.

You have absolutely no extra rights when it comes to promotion opportunities, jobs with more responsibility and more money involved. You can't be treated less favourably than anyone else, certainly, but you get no preference at all.

You don't give enough information to be able to tell whether the redundancy process used has been fair or not, so you may have some sort of case, assuming they don't find you a suitable alternative and do in fact go on to confirm your redundancy. But if you do have a case, it will not be because you have any right to be offered promotion over anyone else.

i think you should talk to an HR solicitor before talking to your hr people about exactly what your rights are. but before that you need to think what you want - do you want to keep a job ie if they offer you sae, or do you want to go?

Flowerbeanbag - thanks for that, that does make sense about having no extra rights when it comes to promotion opportunities, and I did raise that with both lawyers but they said it didn't make a difference. I am very confused! As I didn't get the opportunity to even apply for the promotion, do you think that makes a difference?

As there have been so many redundancies my sense is that their search for an 'alternative' is just following protocol and that they will indeed make me redundant.

HerHonesty - sorry, could you explain what you mean by 'sae'? You're right though, I need to think about what I want. Ideally I'd just like a bit of extra cash as they've made me redundant on maternity leave, I don't want to stay in a company that doesn't want me. I did ask them whether I had to accept any 'alternative' they found, and they said no.

suitable alternative employment, but remember what their version of sa is/could be can be quite different.

If the redundancy is all legal and above board then you won't get any extra money just because you were on mat leave. It is perfectly legal to make an employee on mat leave redundant as long as they follow the proper processes.

If you don't accept the suitable alternative then I think you waive your right to any redundancy pay.

I think you need some more legal advice on this as your expectations don't seem to be realistic.

Not having the opportunity to apply for this job might be relevant, yes, depending to an extent on how internal recruitment/promotions are usually handled. If, for example, there is usually a robust recruitment/selection procedure for internal jobs, meaning internal candidates have to apply and probably be interviewed, but that didn't happen in this case, then that might be important.

My usual advice here would be to take some advice, explain to an employment expert all the circumstances involved, explaining exactly what happened when and also discussing exactly what outcome you want to achieve so that a plan can be worked out to get you there.

However I am concerned that employment lawyers you hvae been talking to are telling you that you have a case based on the fact that a job which is clearly a promotion is a 'suitable alternative' and should have been offered to you without competition. That just isn't the case. You can see the logic yourself; otherwise you could get assistants on maternity leave saying they ought to be offered manager jobs that become available over and above more experienced candidates. That's a bit extreme, but it illustrates the point.

I say all this because I am concerned at the quality of advice you are getting if you are being told that. I think you should talk to someone else about the whole thing to work out whether there are any actual flaws in what has happened, which there may well be, so that you can work out a way forward to exploit those to get a result for you.

hey Gigiuk. i really sympathise with you having been in a similar position. i would say if two lawyers think you have a case then there is a position you may be able to exploit to your advantage. i appreciate the other posters' opinions but frankly, in my view, any one of my (male) managers or colleagues, either now or in the past, would have pushed any advantage they felt they had to get a better deal in their work life if they found themselves in a redundancy position, so why should working mums be shy and retiring? employers take advantage of working mums all the bloody time. and you're not exactly pushing your luck if you have genuinely received legal advice to your favour. if you maintain a non-aggressive stance, continuing to ask HR politely and merely state what you believe to be the case according to legal advice you have received (which is absolutely true) then i don't think you are doing wrong and it's just a case of negotiation. it's up to them how they respond (eg, cave in immediatley or robstly defend themselves) and equally then up to you if you want to take it further. of course you need to be happy and sure that you can cope with the worse-case scenario is if it doesn't go the way you hope (you may ahve to do the job or go to tribunal, for example) but i'd say go for it. i would only hold back if you work in an industry which is very small and specialised and where if you got labelled 'troublemaker' you might find it hard to get reemployed. but i think those are probably few and far between

gigiuk - am in exactly this situation myself, am currently going through the grievance process as being forced to apply for virtually the job I was doing before when it should be given straight to me instead of being open to others. I totally see where you're coming from regarding the promotion, as if it was suitable for your colleague doing an identical role to you then surely it makes it a suitable position for you too? good luck

Gigiuk, what happened to your colleague's role after he/she was promoted? i would have thought that his/her old role would have been the suitable alternative rather than the promoted role.

Absolutely don't give up on this. Nobody here is saying that you shouldn't. If the advice you have had is that you have a case then you should pursue it.

It just seems from the information you have given so far (which may be incomplete) that the promoted role isn't a suitable alternative, and you seem to be expecting extra money just because you are on maternity leave. I agree with flowery that you need some more advice.

I was made redunant myself when I went on mat leave at the end of June so I can totally empathise with your position, it is a really horrible thing to go through and you have my every sympathy.

and i never said that i am sorry to hear you are going through this! it seems to happen to a lot of people.