Maternity/Redundancy/TUPE

[AngelEyes46]

Part of a company is being outsourced wef 1 April. Friend on maternity leave and consultation is taking place in respect of a new structure. Friend's role is not in new structure. However, there is a position which friend could do but is 20K less than she is earning. A suitable alternative is another job that cannot be detrimental to previous position. Can she say that she will do 'new' role and salary would be protected?

Have they actually offered that?

No - and I think they would rather get rid of her altogether. I think she would ideally like to stay in original company and have redeployment rights. However, the TUPE is taking place wef 1 April and the consultation will finish after this. She has been told (as we have all) that there are no redeployment rights within original company. So, has she rights re:

1. TUPE - what protection has she?
2. Maternity - what protection has she?

Do they need to offer her a 'suitable job' in either the initial or the new and if there is not a 'suitable job', do they need to make sure that there is one? Apologies if a little all over the place

Under TUPE if her role transfers to a new company her terms and conditions and length of service are protected.

Assuming this restructuring is taking place within her new employer post-TUPE then her previous employer is irrelevant.

Maternity protection, she can't be made redundant because of her maternity leave. If there is a suitable alternative vacancy available, it must be offered to her. Suitable alternative means same or no less favourable terms and conditions and suitable for her skills and experience.

They are not obliged to create a role just for her where there is not one, neither are they obliged to pay her £20k more than the proper rate for an existing role.

Thanks Flowery - I thought this would be the case. One question:
Could she argue that her skill set meets the role of the 20K less (which it does) and therefore be assimilated into this role without any other competition. It doesn't meet the criteria of 'suitable alternative' but does it meet the 'duty of care' as she is pregnant?

Sorry - another question that I meant to put in:
Could she also argue that as a duty of care the initial company is aware that they are transferring her to a company which does not have a role for her and therefore they should, as a duty of care, attempt to redeploy her in the initial company (which would be possible)?

The obligation is to offer a suitable alternative if there is one. A duty of care doesn't extend to giving even more legal protection than is required otherwise the employer makes themselves vulnerable to claims from other employees. She can apply for the job on £20k less presumably, if it's a vacancy, and if she's the best candidate she should get it. Similarly if there is a role available at her current employer, as you suggest, she can presumably apply for it now?

Dear all
Following on from my post, structure has been finalised and there is a possible role for friend (which is in line with her salary - so an appropriate match). However there is one point on the person specification that she does not meet under essential qualifications. It is asking for a particular qualification and does not list after 'or equivalent experience'. Could she argue that she meets everything else other than this and due to being on maternity, be regarded over and above anyone else?

It doesn't answer your question but (a) is the qualification a regulatory or similar requirement and (b) how quickly could she get it?

Yonic - what do you mean by regulatory? with (b) it is a professional qualification and would take years.

I mean - if it's a requirement eg to have someone with a food hygeine certificate overseeing a kitchen or else it would be closed down, then it wouldn't be possible for the employer to waive such a thing.

I see. What her job was before the restructure was Commercial Director. The company have got rid of this role and created a finance director as a 1 full time position (was initially 0.5). The FD's role specification states Finance Director with commercial expertise. The bit that she hasn't got is "qualified ACCA/ACA/CIMA/"

I would have thought for an FDA role a finance qualification would really be an essential. It often is a regulated role dependent on the industry and would have a significant amount of responsibility for submission of company accounts. If she has this exp then go for it but I would think this would be a diary significant stumbling block

Ah.

I think it is very common for an FD role to require such a qualification. Also, if she has been a CD, her experience would be pretty different to that of an FD.

If she'd been an FD elsewhere but had done so from, say, a masters in finance and accounting rather than CIMA etc, it would be unusual but she would have a stronger case for arguing a matching skill set.

Would she really feel confident to run a finance department and take full responsibility for the numbers? She must have previously worked with FDs and have an idea what the job is.

What I thought could happen is a 0.5 FD and a 0.5 CD but apparently that's not an option.

I think she'd definitely struggle to argue that the role you describe would be a suitable alternative for her and that she should be offered it above anyone else tbh

It is frustrating for her as in one of the initial structure, there was a 1 fte CD and a 0.5 FD. Now in the final structure, i.e. consultation has finished, it's 1.0 FD with commercial expertise.

Does she have a case as initial structure had her role in it?

Which groups were consulted in the consultation?

unions and staff

I am not an HR professional, have just been through a few restructures and TUPEs in my time!

But if the consultation happened with the right groups, I don't see how the structure changing during the course of the consultation would give her any leverage.

Does she want to return or is she seeking a better settlement? Has she taken any legal advice yet?