maternity leave and redundancy - advice needed!

[sar123]

hi - i will try to keep this short and simple! Restructure at work while I was on OML means my old role no longer exists. I was invited to apply for the new role in the team, plus 2 other roles elsewhere in the organisation, but declined on the basis that I had decided instead to take AML and didn't want the hassle at the time of applying for jobs I wasn't sure I really wanted to do. Did ensure at the time that I got written confirmation that if they couldn't find me a suitable alternative role at the end of AML I would get redundancy. However, I have now found out - I think - that they should have offered me a new role and that they shouldn't have told me I needed to go through an applications process and submit CV's etc. Have been told this by an employee advice line (run by my company for employees by an external company) and by ACAS. Apparently a woman on mat leave who is made redundant takes precedence over any other employee and a suitable alternative role should be offered to her before it is offered to anyone else. Does anyone have any experience of this? Can it really be true????? Can't believe they wouldn't know this - they are a huge global business. TIA.

Tjhey probably do know this and merely don't want to employ you any more, since women with small babies are thought of as unreliable. It's not a case of what they know, it's a case of what they know you know.

take 'em to the cleaners.

This is definitely true. I am possibly about to be made redundant on AML (for genuine reasons) and so have been reading a bit on the internet. It is the only bit of positive discrimination for women on mat leave. Have a look at this and this

Unfortunately I also discovered that, unless it says otherwise in your contract (unlikely!), you are not entitled to any notice pay if your contractual notice is more than the required statutory notice, which is one week for every full year you have worked. So for example, my contractual notice is one month, but I have worked for my employer for a year and a half so required statutory notice is one week. So I am entitled to nothing! Hoping my company doesn't know this!

If I were you I would read through your contract, check out the DTI factsheets and contact your HR department. As you say, the HR dept of a global company should really know all this. Good luck!

This is true. If suitable alternative posts are available within the organisation, they have to be offered to a woman on maternity leave before being offered to any other employee.

Fearscape, I'm not sure your information regarding notice is correct. Contractualy provisions cannot remove statutory rights. In any event, you have to have been employed for 2 continual years by the same employer to be entitled to redundancy pay (unless your contract provides otherwise), so it looks as though you won't get any pay on those grounds.

I know NOTHING about mat law/law in general etc. But won't they just say they offered sar123 a new role in the team or her choice of 2 others and she declined thereby making herself unemployed? or if they are that huge just give her any old job to do when she starts to complain in the hope that she will just get fed up and leave?

But they didn't offer her these roles. They asked her to apply for them, which is a different kettle of fish.

Sar - it is correct that they should have offered you one of the available roles without you having to apply for it.

I was in a potential redundancy situation during my mat leave so looked into it then. I had to draw it to the attention of the people in charge of the restructure ffs as they didn't know anything about it (and these were HR professionals!!) The ironic thing is that during the restructure, they interviewed another lady on mat leave for a job - and my boss who was aware of the law as I had mentioned it to her - sat in on the interview panel and let this poor woman go through the stress of having an interview - just plain wrong!! (Fortunately she did get the job but she really shouldn't have had to go through the process)

They have cocked up - I would arrange a meeting with them and explain the situation - and obviously if they don't do anything about it, take it to a tribunal.

Companies shouldn't be allowed to get away with doing this sort of thing.

I just thought it would have depended on the way it was phrased, don't lawyers get really excited about the exact meaning of words in each context?

Doesn't matter how it was phrased. They either offered her the job (without having to apply for it and go through interview process) or they didn't. If they asked her to apply, that is not offering the job.

Sorry Freckle, I didn't mean redundancy pay, I meant pay in lieu of notice (which I have received when being made redundant previously - work in a very volatile industry!). I just assumed that when I was put on notice I would receive a month's normal salary pay despite being on AML, but seems this is not the case . Probably a bit naive!

point taken freckle I'm no lawyer (obviously)

Thanks all. I can't quite believe that this has happened! I work for one of the biggest companies in the world in the sector. The brands are household names! I must be very naive. Thankfully I have kept the emails they sent me telling me to send my applications in for the 3 roles - 2 of them were already being advertised internally and the emails make it quite clear that they had been posted for other employees to see before they contacted me about them!!!!! Not sure what to do now???

Sar - I really would contact someone 'in charge' - whether that is your manager, someone in HR or whatever - and explain that you are aware that they should have offered you one of those jobs and therefore they are in breach of employment law so could you come in and discuss which job is most suitable for you....

Then see what they say to that.

Obviously this does work both ways - so if you don't actually want any of the jobs and want redundancy, if you are going to raise it, you need to have valid reasons why none of these jobs could be considered suitable alternative roles (ie too much travel, loss of status etc)

Hi CeeBee - thanks for that. The roles in question have been filled, so no chance they will now offer me one. I'll wait to see what they do next. They are looking to see what is available at the moment, because I am due to go back in the summer (my AML ends then). I feel sure they will contact me to invite me to apply for vacancies, so at that point I will have the conversation about legally what should be happening. Wish me luck!!!!! Anyone know a good employment lawer....??

Unfortunately not

But, if those vacancies have been filled, they have already acted illegally so you could take action now.....

Hi sar123

Incredible what they have done (or not). As everyone else said they have cocked up.

The only reason you can't have the same job on same terms and conditions at the end of AML is pretty much if it doesn't exist any more as in your case. They MUST however offer you a suitable alternative on no less favourable terms and conditions. This not only means pay and benefits but also duties an responsibilities. They cannot just put you in a less senior role for example and still pay you the old rate.

You do not have to apply for another job. You would take priority for other roles anyway being on maternity leave.

You could possibly resign and claim constructive dismissal on the grounds that there has been a fundamental breach of mutual trust and confidence that has made the relationship untenable. This is on the grounds that they have cocked up big time, put you through unecessary stress etc with regard to the process - particalary when they should have known better.

In addition you could claim sex discrimination on the grounds that it is pregnancy/birth related etc.

This will be a complicated one and sorry to say you do need specialist advice. Do not take constructive dismissal lightly - lots of people have heard of the phrase and think its easy but its not.

Check your home insurance policy to see if you have legal expenses cover.

In addition to this they should have followed the statutory discipline procedure (minimum 3 step) and written to you initially to say your job is potentially at risk, then invited you in for a meeting to discuss the restructure and the business grounds for it as well as discussing alternative roles etc. I suspect they haven't done any of this either so once again less favourable treatment due to you being on maternity leave = sex discrimination and a stronger case for you!

You need to have a sit down with them on a formal basis - I suggest you follow the formal grievance process now and do it by the letter. Raise all of these issues and see what they are going to do about it. They need to sort it out - your chance to tell them what you want as you need to go into the process with a resolution in mind.

Finally (sorry), do you want to leave there anyway, have you been there long. Could be an opportunity to get a pay off under a compromise agreement where you waive all your rights to claim against them in return for a lump sum big enough for you to go away quietly. Let them make a move on that though, don't suggest it to them.

Sorry to sort of divert this but I'm curious (never know when you might need it) would it not be allright for them to offer sar123 a job to return to? (as long as it meets criteria re similarity) do they have to offer her the first job and every one that comes up after that?
Also if they didn't do the meeting to discuss business grounds with anyone (ie male or female employees) can you still claim sex discrimination?

They could still offer SAR a job but maybe the ones that have now been filled were more suitable or would have been preferable to SAR.

SAR only needs to accept it if it is 'suitable' in terms of responsibilities, duties etc.

Also, if they haven't consulted with any of the staff, they would have breached employment regulations with all the staff - therefore leaving themselves open to numerous tribunal claims so I find it extremely unlikely that they have not consulted anyone - no organisation is that stupid.

If she is happy to take a similar job if they now offer her one, then she can and just carry on as if nothing has happened.

Whats happened here though is that they have cocked up in various areas whilst she is on maternity leave so it could give rise to a sex discrimination claim on those grounds and that fact they haven't given her priority or even probably followed proper procedure regards redundancy. All of this is because she is on maternity leave so its irrelavent as to how they treated anyone else - its just about her and how they have breached her contract. Has it been such a fundamental breach that she can no longer work for them?

In employment law, constructive dismissal is where anemployee resigns due to their employer's behaviour.The employee must prove that the behaviour was unfair ? that the employer's actions amounted to a fundamental breach of contract or the law. Theres some interesting stuff on www.canter-law.co.uk/employment/constructive_dismissal.html

thanks (both of you)

Chocolatekimmy - thanks for that, on top of everything else they've done you have made me realise that they haven't followed the consultation process correctly. They rang me last year to tell me my role had been restructured, emailed me the role profile and invited me to apply!!

1dilemma I have clear written evidence of their having told me I need to apply for vacant roles by sending my CV, and that 2 of the roles had already been advertised internally for a few days before my line manager emailed me to tell me to get my skates on if I wanted to apply!!!!! So I feel quite confident that it is fairly obvious they weren't planning on offering me anything. And the law states that they must offer it to the woman on mat leave who has been made redundant BEFORE it gets offered to anyone else - the maternity leave person takes priority over all other employees (even others who have been made redundant).

sar 123 I would say that's pretty clear! but I wasn't doubting you just wondering out loud how 'firm' it all was, the law that is not your e-mails!

I know where you are coming from, there are all sorts of grey areas in things like this. For a start, there is the issue of what constitues "suitable" alternative roles, and I am sure if they wanted to argue that I wasn't a suitable candidate for those roles they could do, and claim that I wasn't offered them for that reason. Then again, they shouldn't have been asking me to apply for them!!!!! And they have been very clear in that what they are denying I am right about is the legal issue around offering me a role versus me having to apply through the usual company process, rather than saying there are no suitable roles, iyswim.

Sounds like a bit of a mess, hope you can resolve it without too much hassle

I am reading this with great interest as I'm in a similar position. I also work for a huge MN. My department has been restructured and my job has gone to a different location (country), so they offered me redundancy - this happened while I was pregnant. When I went on maternity leave, the notice of redundancy was 'frozen'. I'm now 10 months into maternity leave and looking for a new role to go back to (if I don't find something in the next 2 months, I am redundant, unless I decide to go to the new country). I have had to apply for jobs and been encouraged by HR to do this. I've had an intreview (although to be fair this was for a role that was a level below my previous job, which is why it didn't happen).Is this right?? Or should they be offering anything suitable to me before its posted internally? I'd be grateful for advise as I just assumed (wrongly??) that HR in a giant MN would know their stuff!!

poppet - read my earlier (long) posting for info