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Help...redundancy whilst on maternity leave

89 replies

Daisypops · 31/07/2007 12:58

I'm currently on additional maternity leave. I have been told that my job is redundant and I will have to apply for another position within the company. I have read that it is unlawful to make a woman redundant whilst on maternity leave and the employer MUST offer her a suitable alternative position. Apparently it is the only time when positive discrimination is allowed.

Does anyone have any advice or information.

Also are you entitled to legal aid whilst on maternity leave. I'm not on income support and still classed as employed.

TIA x

OP posts:
tribpot · 31/07/2007 13:11

Sorry to hear that you're going through this.

Check out the Equal Opps Commission's website and do a search for similar threads, it seems to crop up depressingly often.

Hope you can get this resolved.

flowerybeanbag · 31/07/2007 13:14

HI Daisy, you are absolutely right the only time where positive discrimination is allowed is for redundancy during maternity leave! I remember being astonished when I first found this out a few years ago, as it goes against all the usual principles of employment law in this country, where no less favourable treatment is usually the principle.
If there is a suitable alternative it must automatically be offered to the woman on maternity leave, you should not have to 'compete'.
It may well be that your employer is not aware of this legislation, so I would initially at least give them the benefit of the doubt and give them the opportunity to put this right.

I would write to them outlining what you have read (where did you read this? Is it somewhere official that you could direct them to?), and requesting that they remedy the situation and offer you the suitable alternative. They should then go and check the law and sort it out.

If not, then you obviously need to get a bit more formal with a complaint. I'm not sure about how legal aid works, perhaps someone else can assist with that, but I would be astonished if you couldn't get it while on maternity leave for something like this if you need to.

Do write and point out their error first though - it is entirely possible they don't know they are wrong, so in this case give them a chance to sort it out first I would say.

Niecie · 31/07/2007 13:15

I think I would go to citizen's advice on this one as they offer free advice and should be able to help.

Can I ask - do you want to be made redundant? I would be very surprised if you had to apply for another job so if you are happy to be made redundant then just take the money and run. I am absolutely not an expert though.

You have my sympathy though - you could do without this hassle whilst you are on maternity leave and the upheaval of starting a new job if you do go back.

Daisypops · 31/07/2007 13:21

Thank you all for your replies.

I thought I was right but wanted to check. What a mess. I really don't want this hassle whilst on maternity leave . I want to enjoy my time with my bubba.

Anyway, I am going to e-mail my manager now with the legislation and see what he says.

I did mention it to him a few weeks ago now and he never came back to me, he just rung today and said your jobs gone, you can apply for this one or take voluntary redundancy.

I don't want to be redundant. I'm a single parent with a mortgage so if I lose my job I'd be in a pickle. I would obviously apply for new jobs but I can only work thursdays and fridays so it might not be easy getting one!

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Daisypops · 31/07/2007 13:34

Flowertbeanbag, the term 'suitable alternative vacancy' worries me. I will be going back part time and the position I have to apply for is most definately a full time post. I brought this up with my manager this morning, as the lady I am 'competing' against is full time and I can't help thinking I'm at a disadvantage because the interviewers knows I'm part time. Obviously they say they will pick the most suitable but she is more suitable becuase she is full time.

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potoroo · 31/07/2007 13:41

Your company should have a maternity policy and redundancy policy that you can access.

Actually, your position can be made redundant while you are on maternity leave, but there are some fairly strict laws around those circumstances.

The link that tribpot sent is the most useful that I have found.

potoroo · 31/07/2007 13:42

I think there is a difference between 'offering' and making you apply (in competition) for another post. I don't think they can do that (make you apply for another post in competetion with someone else - particularly if the T&Cs are different)

Daisypops · 31/07/2007 13:49

The website tribpot referred to was the one I have read before. That appears to say I must be offered a suitable alternative.

Apparently I have been 'ring fenced' me and the other lady have to apply for the samel position and it will be given to the most suitable.

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potoroo · 31/07/2007 13:58

But you are not being offered a suitable alternative at all.

You are being asked to apply for a different position in competition with something else.

They can't do that!

flowerybeanbag · 31/07/2007 14:03

no absolutely can't make you compete. They can make you redundant while on maternity leave, but if there is any suitable alternative available it has to go to you, no competition, or ring fencing etc. If there is one job available after redundancies and two people up for it, it has to automatically go to the individual on maternity leave, so no decision about who is more suitable.
Were you p/t before your leave Daisy, or just hoping to go back p/t?

Daisypops · 31/07/2007 17:06

I was full time before my leave and hoping to go back part time.

I have e-mailed my manager the legislation, he is going to send it to HR. Then what...?

I have never been in a situation like this before. Do I go to a solicitor or CAB?

Thanks so much for your advice.

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flowerybeanbag · 31/07/2007 17:15

With any luck HR will check the law their end, and sort it out for you.

Obviously because you should be offered the job straight off without having to compete, the fact that you are hoping to go back part time and this other lady is f/t will be irrelevant, so you should be offered the job anyway.

However if it is a f/t job, you will be offered it as is, and the fact that they know you would prefer to go back p/t will not be relevant - it is a suitable alternative to the job you were in prior to your leave which was f/t.

If you want to go back p/t you would need to accept the job then put in a flexible working application to reduce the hours. Your employer is obliged to consider your request and has to come up with decent business reasons if they refuse it.

Do you think this new job could realistically be done part- time, or as a job share or anything similar?

Daisypops · 31/07/2007 17:20

thanks FBB, its definately a full time job

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flowerybeanbag · 31/07/2007 17:30

oh dear, that's not good then. They are wrong not to offer it to you first, if they don't do that now you have flagged it up to them, but you may not be able to accept it.

Is this new job v different from your old one then, if you were planning to go back to that p/t? You say this is definitely f/t, no way it can be arranged more flexibly.

Daisypops · 31/07/2007 17:35

no its not very different. I did the new job as part of my old job iyswim.

isn't the fact that its full time irrelevant.

Sorry I think I misunderstood, it definately needs a full timer or two part timers. I don't think its set in stone thta the person HAS TO BE full time. They can't do that can they?

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flowerybeanbag · 31/07/2007 17:42

no that's right. It's fine that it's a f/t job they have on offer and it should be offered to you first, as it is. Sorry I misunderstood when you said it was def a f/t job I thought you meant it couldn't be done flexibly at all.

But sounds as though there may not be any good reasons for a flexible working application to be refused. Once you have heard back and (hopefully) they have offered you the role without any competition, I would accept it in writing, and then separately in writing put in a flexible working application with a good, reasonable, business-like proposal for how the role could be done p/t, forms to use here if you need them, there is guidance there as well.

Daisypops · 31/07/2007 17:45

thanks v much fbb. i will probably be back to let you know what they've said, hope you'll be around!

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flowerybeanbag · 31/07/2007 18:28

I expect so, am around most of the time at the moment!

Daisypops · 01/08/2007 16:29

Still haven't heard anything back from my manager so I have e-mailed HR direct and asked for a response asap. What is really upsetting me now is that fact that I'm on maternity leave and should be enjoying the time with my baby and not having to fight for my job and worry about work.

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flowerybeanbag · 01/08/2007 17:03

absolutely right Daisy, you should be enjoying your time
Hopefully emailing HR direct will get it sorted quickly though. Fingers crossed!

Daisypops · 06/08/2007 14:29

Still not heard anything.
They replied to my e-mail and said they were looking in to it but I still haven't heard anything. Apparently the restructure of the company is to be complete by 31 August and the interviews for my job are at the end of aug. Are they allowed to drag this on for so long? Surely they should know the law. I'm losing sleep.

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MyEye · 06/08/2007 14:43

I would contact a solicitor tbh, esp if they are dicking you around like this.

Or are you a member of a union?

flowerybeanbag · 06/08/2007 15:11

Daisy try not to worry.

I would send them a letter recorded delivery quoting the following which is from the DTI website guide to maternity entitlements and responsibilities

'If a redundancy situation arises at any stage during an employee?s maternity leave which means it is not practicable for the employer to continue to employ her under her original contract of employment, she is entitled to be offered (before that contract ends) a suitable alternative vacancy, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer.

The new contract must take effect immediately on the ending of the original one and must be such that:

the work to be done by the employee is both suitable and appropriate for her to do in the circumstances; and
the capacity and place in which she is to be employed and the other terms and conditions of her employment are not substantially less favourable to her than if she had continued to be employed under the original contract.
It is unlawful for an employer to make an employee redundant during ordinary or additional maternity leave period without first complying with these requirements. An employee made redundant in these circumstances will have a claim for unfair dismissal and may also be able to claim sex discrimination. An employee who has been dismissed in this way should appeal against the dismissal as part of the requirement under the Statutory Dispute Resolution Procedures. Failure by employers or employees to use these statutory procedures could result in an increase or reduction to any compensation awarded. The Acas Code of Practice on disciplinary and grievance procedures sets out the statutory dispute resolution procedures that should be followed before an employee may, if the dispute is not resolved, complain to an Employment Tribunal. Employers and employees may also find the general Acas advice on dispute resolution helpful.

If the employer has a suitable alternative vacancy available but fails to offer it to the employee, the redundancy dismissal will be regarded as an unfair dismissal. If the employer offers the employee a suitable alternative vacancy (she is entitled to a four- week trial period in which to decide whether the employment is suitable, and this period may be extended beyond four weeks by written agreement) and she unreasonably refuses it, either before or during the trial period, she may forfeit her right to a redundancy payment. Further guidance on unfair dismissal and redundancy is available from DTI.'

Put that paragraph in and then say -

'as you will note from the above DTI guidance, if there is a suitable vacancy available and it is not offered to me, this constitutes unfair dismissal and possible sex discrimination. As I have raised this matter with you previously and heard nothing I am formally putting you on notice that if I am not offered the suitable vacancy without competition, I will be pursuing this matter as an unfair dismissal claim and will also be discussing with my solicitor the possibility of bringing a claim for sex discrimination.'

The law is clear, this would be unfair dismissal. I would be astonished if they don't back down pretty sharpish if you quote the official guidance at them and notify them that an unfair dismissal claim and sex discrimination claim is on the way.

Try not to panic, just put that in a letter, send it recorded delivery and it should do the trick. Go and see a solicitor as well if you feel it would help you feel less stressed about it, and if you can, but as I say, the law is clear. They may not know it, and may need to look into it, but it's quite quick to find out and is no excuse to leave you hanging and getting stressed.

Daisypops · 06/08/2007 16:14

thank you v much fbb. I can't understand why therr is such a delay when the law is plain and simple. I cant help thinking they're looking for loopholesso they have an excuse to get rid of me.

Surely they should have covered all this before I was ring fenced and told to apply for a job.

Thanks you v much I appreciate your advice and will keep you posted. x

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Daisypops · 10/08/2007 21:13

does anyone know a solicitor I can contact that specialises in this type of thing. I need someone to give me some FREE advice.

TIA.

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