Given choice of maternity & redundancy ... or keeping my job

[AmyLC80]

Hi

I'm in a real state about my employment situation and I know I am being treated badly, I just don't know what to do about it.

I have been working as an employee for just over 3 years for my company, which is a very small firm. I am a proper employee and my tax and NI is deducted from my salary etc. We have no HR department or policies on anything.

I am pregnant, due August 12th. I have tried to discuss maternity and have the following options:

1. I work until the 9th August and then take no more than 6 weeks off at 90% salary before returning (preferably 4 weeks if the baby arrives on time). For this year I can't have more than a few days holiday due to the time off later in the year. (For this holiday year to date I have had 3 days plus bank holidays).

1. He will have to let me go as we are a small team and it makes it too difficult to manage workload if I have significant time off. He is not prepared to offer a redundancy package as I have been offered an alternative option as outlined above. But I do get my full SMP entitlement.

I KNOW both options are not fair and not what I am entitled to. Both have only been outlined verbally.

The question is what do I do and what are my options for resolving the situation.

Ideally, despite everything, I want to keep my job as I live in a fairly rural location and work opportunities aren't plentiful (especially on my current salary) but I can't see a way to resolve this to work things out unless I go for option 1 and just accept it, but I don't feel that is reasonable or enough time with a newborn (my first).

Don't accept either you are entitled to the full maternity. I would look up the maternity bits on acas/direct.gov.uk and give them to your boss.

I was bullied out of my job when pregnant and was made redundant and got 9 months maternity and my redundancy payout and it's the best thing that ever happened to me.

Option 3: he follows the law. You take your maternity leave, as entitled, then resume working. The only caution is to think about only taking your 6 month ordinary maternity leave, because that way he HAS to give you your exact job back. If you take 9 months/1 year, he only has to give you a comparable job.

If he does indeed let you go, either by making you redundant and then replacing you or terminating your contract without redundancy, you can take him to tribunal.

Incidentally, small employers get 104% of their payment to you, as recognition of the extra costs to them of substituting for you during your ML.

Does he know that he is in the wrong? If he is so tight with money he probably wont like the compensation that you will get after a tribunal either.

What he's trying to do is completely illegal. Call ACAS for advice.

Agree: option 3: he follows employment law.

Here is the direct.gov page which signposts you to information about maternity rights. Perhaps you could steer him towards this? If he is acting from ignorance of his obligation, this should clear it up.

Thanks for the replies. "Option 3" is definitely what I want!

I have checked the government pages and have sent these links to him when the issue first arose a couple of weeks ago. His reaction was "oh right". So he is well aware of what I am entitled to legally but just doesn't seem to think he has to follow them.

I spoke to ACAS and Maternity Action and they confirmed my rights but weren't able to offer any advice on how to enforce them - other than wait for him to not follow them and then take the company to an employment tribunal after he breaks the law.

I really don't want the stress of this and the expense of hiring an employment solicitor right on top of giving birth. But I can't see that I have any other options.

Nobody has taken maternity in the company before and I am the only female employee. I just feel like I'm in a nightmare with it.

I think I would be tempted to consult a solicitor now and have a letter sent to him reminding him of his obligations under the law. Obviously this isn't free but you are better placed to handle legal proceedings now than you will be after giving birth, and a one-off letter might be enough to scare the pants off the guy.

Is he a bit of a child? You shouldnt have to make allowances for him, but if you want to keep your job is he the kind of man that might respond to you presenting him with a solution eg here is what I wll be doing, you will get £xxx from the government to cover my leave, here is how we can cover my work, and I will be back at work in January?
It probably depends on his personality whether just teling him what will happen will work, but it sounds like he is a bit childish/stroppy?

Ask him to put your options in writing, so you can consider them (and then show the letter to your solicitor).

Also consider ... if you want to carry on working for him, then your working relationship may change as a result of this disagreement.

He is 100% wrong not to offer you your full entitlement to SMP, maternity leave and holiday time.

and ... if he wants you to work up to 3 days before your due date, is he prepared to deliver a baby?

Write a letter to him, keeping a copy of course. Send by recorded delivery.

Tell him you understand your options to be ... (as you have set out in your OP). Tell him that, according the legal advice you have received, being forced into such choices is both illegal and discriminatory and that you will have no hesitation in launching a tribunal action against him should he not return to acting within the boundaries of UK law.

Then start another sentence saying that you really enjoy working for him and fully appreciate that small employers have difficulties meeting their legal obligations when it comes to Employment Law, but despite this, you are not prepared to accept actions that force you into a position with which you are not comfortable.

Then have another sentence stating that it is your intention to take maternity leave as follows ..XYZ...(staritng X date, expecting to be off for x months, whatever is your plan), and that you are fully entitled to take this pattern of leave, and will do so.

Final sentence should read something like I trust that your stance on all of this will change and that once you have taken legal advice and read the government advice I gave you on X date, you will appreciate that any business logistical issues caused by my absence, difficult though they may be, are your problem to deal with, and not mine.

Please can you come back to me within 14 days in writing to confirm my maternity arrangements. I trust you can appreciate that your demands have been very stressful for me so it is important that we resolve this amicably as soon as possible.

Finish with something like I love my job and look forward to returning from maternity leave to resume this role in due course. I am sure you will be as keen as I am on putting this behind us so that we can resume the good relationship that appears to have broken down as a result of my pregnancy.

Thanks everyone.

Squiffy, I think your letter reads really well and I will definitely use that as the bones for one I will draft him. I do think he will turn round and say if I don't like it then leave though.

He is on holiday at the moment (back in two weeks after the bank holiday) but I will have something waiting for him. I'm going to ask for 6 months off maternity plus my statutory holiday entitlement.

Hive, you have his personality bang on!

I would NOT say 'broken down as a result of my pregnancy' as the sign-off. That implies that you accept the blame for a problem that is of HIS making! Sorry you're having to deal with this, I had some mat leave issues during my pregnancy (all resolved in the end), v stressful.

personally i would also stick in a line to the effect that you want to make sure he knows what the law is becuase you wouldn't want the business to act illegally and have to take the consequences.

i would also say in the bit about how it's hard for small businesses that SMP is reimbursed by the govt (if it's small enough more than 100%) and that you'll be happy to help come up with a suitable plan for arrangements during your absence.

I've put the 'relationship broken down' bit in very specifically. It implies that this issue reflects a pattern of behaviour that is ongoing, rather than someone who - oops - completely forgot to check what employee is entitled to.

I really don't think any tribunal would read it as OP taking responsibility for the breakdown - I think it infers the opposite. But, regardless, I think it important to have in writing some kind of pointer that this isn't an isolated 'admin error' but that it is reflective of properly discriminatory behaviour on part of employer, hence why I included it.

OP obv knows her employer far better than we do so may want to reword completely anyway. and if flowery KM, or any of the other regulars are around, I'd be interested on their views on what to say/exclude.

I think the broken down bit is good - I have to agree that 'because of my pregnancy' seems to accept a share of blame in the situation but 'because of your reaction to my pregnancy' is a bit in-yer-face confrontational. I would just leave it as 'we can resume the good relationship that appears to have broken down as a result of this recent situation'.

I would hold off sending a very confrontational letter for now - there's still plenty of time to send one later and as ACAS and Maternity Action have already pointed out he's not actually done anything unlawful yet... at least nothing you could expect to argue and win at a tribunal. He shouldn't be saying those things at all but your chances of getting any satisfaction from a tribunal with just that are extremely unlikely to be worth the time and effort.

IMO you should carry on exactly as if he had said nothing. You request the holiday you want and you notify him of your maternity leave once you have your MATB1 form. There is no discussion to be had. You have a statutory right. If he doesn't like that then he needs to get the law changed to get round it - which is not going to happen.

This is what I would do:

Decide how much time you want to take off. You are entitled to a full year but as a pp says after 26 weeks your right to return to your exact same job changes to you have to be given your old job back, unless that is not reasonably practical, in which case you must be given one which is not on less favourable terms (ie one you have the necessary skills to do, same status, seniority and terms and conditions including pay). He cannot just get rid of you for taking more than 26 weeks and saying he couldn't hold your job open any longer and there was nothing suitable. So, you decide how long you want to be off on maternity leave.

Secondly, once you have decided how long you will take off you should cancel that holiday later in the year if you will be on maternity leave and book some holiday in before you go on maternity leave. You cannot be denied your holiday entitlement because you have been on maternity leave but if he's already being difficult it might be sensible to avoid having another battle later to carry over untaken holiday by taking it if possible.

Make sure you get all correspondence about the holiday in writing - your request, his response and any other back and forth between you. Make it very clear that you are cancelling your holiday because you will be on maternity leave then. I would also make it clear that you wish to book in holiday on X dates to make it easier for him and then business because you continue to accrue holiday entitlement during maternity leave and the more untaken leave the longer you will be off for. I would also point out that you need to take your holiday because if you do not it could have an adverse affect on your health and wellbeing - especially because you are pregnant.

This will then give you some evidence if things go wrong later but it may also stop him behaving like this in the first place.

Please can you come back to me within 14 days in writing to confirm my maternity arrangements.

Unless you have informed him you will be taking maternity leave as per the process outlined here stating you are pregnant,
when the baby is due and when you want to start your maternity leave he cannot confirm the arrangements. If you have done so and followed any additional requirements as per your company maternity policy (eg putting it in writing, supplying medical evidence) then he has 28 days to write to you confirming your maternity leave.

I think if you do decide to go with a letter as Squiffy suggests then you need to get all the legal points spot on to give credibility to your position. In other words, you don't want to give him any reason to think you don't know exactly what your legal rights and obligations are and how to enforce them.

Can I just add following KM's good advice that if you decide to write a letter as per Squiffy's suggestion you should refer to English law (assuming you are in England) rather than UK law, as there is technically no such thing as UK law.

It does sound though based on what your boss has already said that you have to face the possibility that you may lose your job as a result of going on maternity leave. The key is to get your boss to put his comments in writing so that if that happens you have the basis for a claim of unfair dismissal/discrimination.

Thanks all, a lot for me to think about here.

I am based in England as you assume and in a lot of ways I am worried about the future viability of the business. I could easily see a genuine redundancy situation within a year or two (although he has said very specifically that if I don't take maternity then my job is certainly safe for the next 12 months).

I have tried to ask him to put things in writing but he refuses, even if I email, he won't reply by email on this matter. When I commented on this he said there was no need for it and best to talk it over.

It won't be the first time he has flouted employment law with me, but this time it is far more serious as far as I am concerned. In the past he wouldn't give me payslips (although eventually I got them all) and holiday entitlement has always been an issue (I got less than the statutory minimum last year as every time I tried to take some it was refused or not possible). I am reasonably well paid (top tax bracket), enjoy the work a lot and he has negotiated flexible working for me post baby on the proviso I don't take the maternity so it is not all bad ... but I do want to take what I think is a reasonable time off (26 weeks) and have my full holiday entitlement for the year.

Of he refuses to put it in writing just make sure you do, send him an email saying just to confirm our conversation and detail it back Everytime.

That's a good idea from OhNoMyFanjo - if you put everything in writing back to your boss, it will be up to him to respond if he disagrees. If he doesn't, a tribunal is likely to draw a strong inference that what you have said reflects your conversations. The refusal to write anything down of course reflects the fact that he knows what he is saying is wrong.

I'd just like to add one thing. Do not, do not, do not, ask if you can take maternity leave of 6 months or however long. It's not something he has to agree to. It's something you inform him you are taking. It's not a negotiation.

You can inform him you intend to take 6 months (if that's genuinely all you want to take) but reserve the right to extend it should you choose to do so.

When I was having problems re maternity pay/redundancy a friend who had contact with a lawyer told me after each conversation set out in a email what had been discussed and what you understood by it (bullet points). Email that to the concerned party and at the end say something along the lines of

"this is what I understood from our conversation on x date, if you disagree or feel I have msunderstood please respond in writing within x days (or asap) otherwise I shall consider the above information to be correct"

www.tuc.org.uk/index.cfm

Get some legal advice
Good luck