Help...redundancy whilst on maternity leave

[Daisypops]

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

Daisy I can't recommend you a solicitor I'm afraid. A trip to the CAB may help you, they might be able to recommend someone.
Have you written to them as I suggested quoting the law and putting them on notice that a refusal on their part to comply will result in an unfair dismissal claim?
Do have a chat with a solicitor if you feel it would help, but also have confidence that there is no way this is going to end up in a tribunal. Even if they are stupid enough to still not comply following a letter like that, there is no way they would let it go that far if a tribunal claim form is issued.
I expect what they are doing currently is taking legal advice about whether you are correct, and just being a bit rubbish about being quick about it.
If you haven't written formally saying a lack of compliance will result in an unfair dismissal claim, do think about doing that, and have a chat with the CAB and see if they can recommend a solicitor who might be able to help you. I would be surprised if it goes very much further though.
Do keep us informed and try not to worry too much, I know it's hard.

I just wanted to add one thing to this discussion. I agree with a lot of what flowerybeanbag has said, and it is true that you get preferential treatment, but do just bear in mind that there can be a difference between a vacancy and a suitable vacancy.

It does not sound as if your employer is aware of the obligation to give you preferential treatment, which is wrong and you should draw it to their attention. However, it is not necessarily automatically wrong to make you interview. If the new position is different from the old one, and particularly if your manager will change, the manager may want to "interview" to work out whether it is a suitable vacancy for you. However, it should be made clear that you do not need to be the best candidate to be offered the job, just to be suitable.

Do also bear in mind that you might be narrowing your options if you say that you can only work two days a week. I don't know what your job is, but very few employers have vacancies of less than three days a week (except jobs with shifts, where it is easier to accommodate). Although they would have to consider your flexible working request if you asked to go to two days, stating that you definitely won't do more than two days might be a reason that the vacancy is not suitable for you. Is there any chance you could go back full time, or part time with more days, first and then make a flexible working request in a couple of months (I know that this might be hard child care wise. It's just a thought...). I know that's a really hard thought, but it might make more vacancies open up for you and reduce the chance of redundancy.

Bndmans & partners are fantastic solicitors for HR law and I would expect their first hour to be free (it is with most of the large London firms). There's some details here

Saying that, I don't think you need one yet - if you set out a letter as per FB's outline below they will think you've already got a solicitor anyway. I would send that, and wait to see what they come back with before talking to a solicitor and using up the free bit 'too soon'.

Hi, is investigating the redundancy package an option ?

Daisypops how are you getting on? I remember you said the restructure was to be completed by the end of August?
I am off on my hols for a week tomorrow night so just wanted to check if there was any update before I go. I'm sure there will be plenty of people who can help you if anything happens while I'm away, but as I say, just wanted to check in and see how things are going.

Yes I sent them an e-mail quoting what you put fbb. I haven't heard anything yet. Will keep you posted.

Ribena, I had been 'ring fenced' for a position so surely that would be classed as 'suitable' for me. If I was unsuccessful there was a 2nd position that was suitable for me but 6 people in total have been ring fenced for it.

I am intending to go back two and a half days a week then possibly increasing it to three days.

I'm not really sure what they mean by 'ring fenced' because it's not a technical legal or HR term. Different people mean different things if they say it. However, you are right, if they have said "here are six people who are could all do this job and the best one will get it" then that it totally wrong. You should get the vacancy. Not sure what happens if there is more than one of those people on maternity leave though!

I just wanted to highlight that sometimes women on maternity leave get confused by the (blooming confusing) legislation and think that they are entitled to automatically be offered any vacancy they want("ooh, that vacancy looks good, I'll take that one" when they lack 25% of the necessary skill set and qualifications), then get frustrated when turned down. Also, although your employer sounds like they have royally stuffed up the process, sometimes people want to interview because they genuinely don't know whether the vacancy is suitable (e.g. the manager has never worked with you and can't tell on paper whether you could do the job).

Your employer sounds like they've got it all totally wrong. You keep on their case!

Hi Ribena, by 'ring fenced' they mean theres a number of us that are suitable so we have to 'compete' and the most suitable gets it. Is this allowed in these circumstances.

Its been 5 weeks now since I raised all my queries with them and I haven't heard a peep. Its shocking. I'm currently on additional maternity leave but my friend (who I work with) had only just started her maternity leave when we got this news so its spoining the whole experience for her.

I really don't know what to do and at what point to seek legal advice or go to CAB. Its frustrating that we are left in limbo like this.

Daisy - no that's not allowed.

As I said, I'm not sure what happens if more than one of the six of you in your ring-fenced pool are on maternity leave. People on maternity leave get first preference, but I assume that if there are two people on maternity leave that they can pick the better one. Assuming you are the only one of the six on maternity leave, you should be offered the position first.

I would try and see the CAB as soon as possible. Once they have appointed to the role it will be much harder to undo the situation. They might need a stroppy letter from the lawyer or CAB now to make sure that they do the right thing.

Thanks Ribena, I have sent an e-mail like Flowerybeanbag said. I haven't had a reply or an acknowledgement but I know they've got it.

hi daisypops back from my hols. Glad you have emailed them, shocking you've still not heard back. I would take a trip to the CAB now armed with all your correspondence, it sounds like you may have to take it a bit further with a legal letter.

Keep in touch

Hi fbb, hope you had a nice holiday. I got a reply today. Here goes:

'The DTI website and most of the written information available in this area of employment law relate to a situation of one single redundancy in isolation ie a person on maternity leave.'

'If you were the only person with a call on the alternative employment in question we would ofcourse have offered it to you without delay. The dilemma we have is that for almost every new post in the new structure there is more than one person in a deleted redundant post for whom the new post is potentially 'suitable alternative employment'. We are giving the issues you have raised careful consideration and will clarify out position regarding the law.'

They go on to say there are 2 posts I ma mbeen considered for, however it should be noted that there is more than one person for whom these posts are deemed to be 'suitable alternative employment'

The legislation says I don't have to 'compete' for a position doesn't it? What shall I do now? A nice start to my weekend! Arrrg! Any help/advice appreciated! x

Hi Daisypops, good holiday thanks, wet though!
You definitely do not have to compete. They are incorrect to say that the legislation only relates to single redundancies. The legislation is very specific, if there are more people than posts available, the woman on maternity leave must be offered a suitable alternative as priority, without competition. The fact that these posts are also suitable for others is irrelevant.

Stressful I know! I would respond acknowledging their correspondence, saying that you note their plan to clarify their legal position, you look forward to hearing from them again once they have done this, in the meantime your previous correspondence still stands, should you not be offered a post without competition, you will be filing a claim for unfair dismissal and looking into a claim for sex discrimination.

Just be polite and formal, putting it on the record that you have received the response but reiterating your stance. It sounds as though they have been trawling websites themselves so far rather than taking proper legal advice but it sounds like they may now do this.

I still don't know what they mean by a single redundancy. The legislation wouldn't need to exist if it just related to a single isolated redundancy would it? Can you explain what they mean? I get the impression from the letter that they haven't got legal advice yet and are clutching at straws.

Do you mind me asking how you know so much about these situatons fbb?

Fbb, do you think it is acceptable for me to correspond by e-mail or should I start posting everything?

I think you should go to the CAB and get them to start firing off letters on their headed note paper. And I REALLY WOULD see a solicitor about this. You need to move fast on this now.

They are not allowed to make you compete with everyone else for a suitable post when you are on maternity leave - if you are suitable for that post, the job should be yours.

www.acas.org.uk/index.aspx?articleid=1154

Give these people a bell, they are very good.

Thanks PBB, should I go to CAB or ring ACAS or both?

Hi DaisyPops

I would do both - as PBB says it is important you let them know you mean business - they are probabl;ty hoping you don't want the stress.

Hi daisy, this is what happened to me. i had an agreement with my employers to go back to work part time. i was made redundant a few weeks before i was due to return, as were about 10 people in the company. (different departments). their argument was that there had been two of us doing the same job full time, now they only needed one full time, and as i wanted part time work the job wasn't mine.

i contacted cab straight away who were brilliant. it turned out to be a case for sex discrimination (even though the job was given to another woman), apparently i also could have sued for unfair dismissal, which i didn't know at the time. i did win my case. get on to cab as soon as possible, write everything down now because if it does come to tribunal you'll have a hard time remembering exactly how things happened. i was grilled by my employers' guy for 3 hours, it was ridiculous, like something out of a movie..and he really did try to pick up on anything i couldn't quite remember. they basically told every lie they could think of to justify getting rid of me. (late into work, bad attitude, inappropriate dress, taking long breaks etc etc)

really sorry this is happening to you, its awful.

Thanks for yor post nightowl. I really appreciate everyones advice and comments.

I can't quite beleive how incompetent the company is been with this. Its taken 6 weeks to get a response and even that is a load of rubbish!

I'm going to contact the CAB on tuesday and make an appt asap. My workmate who is also on maternity has already been and they said they have someone to represent her if it goes to a tribunal.

When you say you won, do you mean you got your job back?

no, i wouldn't have wanted my job back. i had another one by then. but i did get in excess of 10k.

Daisy, they are talking Bo*ks, but I do know what they mean by a single redundancy. They have got totally and utterly confused and definitely have not spoken to a lawyer yet. A lawyer would set them straight in a heartbeat. It sticks in the mind because it is about the only area of UK law which allows positive discrimination. As flowerybeanbag has said (not sure if it was this thread), that is quite a shock for HR/laywers to discover because it goes against all the usual principles! However, it is surprising (or shocking, depending on your perspective!) how many managers/junior HR people have never heard of the rule.

Sodding daft not to just take the advice and get an answer instead of sending you a totally wrong holding letter though. For god's sake, they should pick up the phone to a lawyer, the EOC, ACAS: plenty of people could have told them the answer straight off.

What they are getting wrong is the difference between the preferential treatment given to anyone at risk of redundancy and the special preferential treatment for people on maternity leave and at risk of redundancy. They seem to know that people at risk get preferential treatment for vacancies over others (e.g. internal or external candidates) but not about the extra layer of protection for women on maternity leave.

As you say, the stuff about maternity leave can necessarily only apply where there is more than one person affected by the redundancy. Otherwise, there is no-one to give her extra preference over!

If you need to direct them to a source, this is what the EOC website says about women on maternity leave and redundancy.

"If an employee on maternity leave is to be made redundant (for whatever reason) and there is a suitable available vacancy, the employer must offer it first to the woman on maternity leave. This is a rare case where legislation requires a form of positive discrimination. If an employer does not comply with regulation 10 of the Maternity and Parental Leave Regulations 1999 (MPLR) an employee will have a claim for automatically unfair dismissal under the ERA s 99.

Regulation 10 of the MPLR 1999 states:

1. This regulation applies where, during an employee's ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment.
2. Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with paragraph (3) (and takes effect immediately on the ending of her employment under the previous contract).
3. The new contract of employment must be such that -

a the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and
b its provisions as to the capacity and place in which she is to be employed, and as to 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 previous contract."

Daisy, meant to say, I had a question:

How much maternity leave do you have left? Is their slowness going to mean that you have to think about going back to work before it gets sorted?

Go for it with the CAB. They will set these idiots straight!