Redundancy - on mat leave...paid notice?

[Dazedandconfused28]

Hi all, apologies if this has been answered previously. I am currently on maternity leave (now in the unpaid months, after receiving SMP until recently. I had planned to return to work at the end of my mat leave in October.

So it now sounds as though I will be made redundant - this is actually a good thing for me, so no drama there. My contract states I am entitled to 4 weeks' notice + 1 week for every year I've worked there. I've been at my current employer 11 years. So, for my question - if they serve me my notice now, during the unpaid portion of my mat leave - will they still have to pay me notice?

Any advice appreciated!

The only thing I know is that when a lot of us were made redundant, hr said they couldn't make anyone on maternity leave redundant. You could be in a strong negotiating position .

The only thing I know is that when a lot of us were made redundant, hr said they couldn't make anyone on maternity leave redundant. You could be in a strong negotiating position

You can be made redundant on mat leave.

OP yes you are entitled to paid statutory notice.

You are entitled to paid notice if your notice period is statutory only (or not more than a week above statutory).

If you get 4 weeks notice plus a week for each year of employment that means you are contractually entitled to 15 weeks’ notice, which is 4 weeks more than statutory. Therefore you are not entitled to have your notice period paid in full.

Thank you! It's essentially a voluntary redundancy, but when I spoke to my HR manager he suggested if they served my notice now then I wouldnt be paid my notuie period since Im not being paid during my final weeks of mat leave. It's good to know this isnt the case!

”he suggested if they served my notice now then I wouldnt be paid my notuie period since Im not being paid during my final weeks of mat leave. It's good to know this isnt the case!”

Did you read my post?!

OP please ensure you read my post again. Based on your contractual notice period being 15 weeks as you describe, you are not entitled to be paid for any of it. That only applies if your notice period is statutory minimum which for you would be 11 weeks.

As it’s voluntary I would definitely be asking for paid notice but don’t go in there saying you’re entitled to it, because you’re not.

This is, in fact, a grey area in law. The law is not quite as clear as suggested, and paid contractual leave may be due whilst on maternity leave. maternityaction.org.uk/advice/redundancy-during-pregnancy-and-maternity-leave/

I would suggest seeing what they say, and considering taking legal advice. If you are in a union this may be exactly the kind of test case their legal teams would support.

However, you do need to be clear - this would only apply if this is compulsory redundancy. Voluntary redundancy is a misnomer. Legally there is no such thing, and the terms of any such agreement are between you and the employer only - the law does not dictate terms for this situation.

Sorry - meant to say "paid contractual notice" - annual leave, of course, is also accrued during maternity leave.

That's odd, none of my resources indicate any ambiguity or grey area. What piece of legislation or case law do you feel indicates a grey area which may override S87.4 of the Employment Rights Act Moondust 001?

The law is seldom as simple as that. If it were, there would be far fewer lawyers around. Sometimes the fact or spirit of laws are in conflict and you cannot simply say that because one law says something, that is the end of the matter. There is certainly legal opinion - as indicated in the link that I provided (I'm sure you would agree that Maternity Action are a credible organisation, and I know that their view is based on some of that legal opinion) - that s87.4 may disproportionately impact on women. A number of unions, to my certain knowledge, hold such legal opinion, should the right case come along as a test case. You will note that I said may and advised that union or legal advice should be sought if possible.

It may be interesting to see how an employer reacts to the choice between paying a relatively small sum in respect of notice pay, compared to the sums involved in defending a case which, as a test case, could involve years of legal representation amounting to massive amounts of fees which, win or lose, they will never see back. Unions, for example, are often more than happy to underwrite the costs of the "right" legal action to test the law for their collective membership and on principle. Employers seldom have such altruistic motivations.

Sorry but I wouldn’t count Maternity Action or unnamed unions as “legal opinion”. I’ll stick to the more robust legal resources I have.

And until one of these unions successfully brings a test case on this, the law is as it stands.

I did not suggest that the law did not stand until a test case comes. That does not mean that people should just roll over and die. The law is not everything.

What you don't count as legal opinion, fortunately, isn't relevant to anything, and nor are your unnamed "robust legal resources". There is a little too much "there is only one opinion and it's mine" on these boards. That's a very HR approach.

”I did not suggest that the law did not stand until a test case comes. That does not mean that people should just roll over and die. The law is not everything”

When working out whether or not the OP is legally entitled to be paid her notice, the law is, in fact everything. The only other question is the morally ‘right’ thing for her employer to do, which she wasn’t asking.

”What you don't count as legal opinion, fortunately, isn't relevant to anything, and nor are your unnamed "robust legal resources".”

And fortunately, your opinion about what the law should be, or might be in future, doesn’t count for anything either, when it comes to answering a simple factual question. You can decide that a maternity charity and trade unions are a good source of legal opinion if you like. Up to you. I’ll rely on lawyers, the actual legislation and the various other resources I use.

”There is a little too much "there is only one opinion and it's mine" on these boards. That's a very HR approach.”

I wasn’t giving an opinion. I was stating, factually, what the law currently actually is, which, when handling the OP’s immediate situation, is the most useful practical advice. If that’s a “very HR approach”, then great, I’m comfortable with that, and don’t see it as a negative.

If you want to take a different approach, knock yourself out, that’s fine but neither you nor I get to decide what the tone or general approach of these boards should be. If you disagree with the advice someone has given, just say so, as you are doing. Fine.

Don't forget you should also be paid for your holiday and bank holidays you have accrued on mat leave.

In your situation I would be ringing acas for advice rather than asking people's opinions. You may come across the odd knowledgable qualified person on here but it's no substitute for professional advice!

Flowery has it absolutely right in terms of the law. However your employer is able to negotiate with you, so if for example they really need people to leave, and you are willing to go under the right circumstances, then you have nothing to lose by clearly outlining what those circumstances would be and negotiating your exit package accordingly. Good luck :)

I'd say you're entitled to 11 week's pay. The other 4 weeks is arguably up for negotiation. They cant say cos youre on mat leave the notice doesn't apply. I get this all the time at work with long term sick cases where the manager wants to dismiss but not pay notice 'because they would have been off anyway '. Tough, if doesn't work like that.

”I'd say you're entitled to 11 week's pay. The other 4 weeks is arguably up for negotiation. They cant say cos youre on mat leave the notice doesn't apply. I get this all the time at work with long term sick cases where the manager wants to dismiss but not pay notice 'because they would have been off anyway '. Tough, if doesn't work like that.”

Yes it does work exactly like that, if the contractual notice is more than the statutory minimum. It seems unfair and is a weird quirk of law, but that’s what the legislation says.

So you're saying a manager can dismiss someone on long term sick and not pay ANY notice flowery? I dont think you are, but that's what my employers try to do all the time.

We now have a waiting list of people too sick to ever return to work who the skinflints won't dismiss due to cost.

”So you're saying a manager can dismiss someone on long term sick and not pay ANY notice flowery? I dont think you are, but that's what my employers try to do all the time.”

I’m saying that if their notice period is statutory minimum only, they need to be paid in full. If their contractual notice period is at least a week more than statutory minimum, they only need to be paid whatever they are currently receiving for the duration of their notice period. So if someone’s been with you two years but their notice period is a month, and you dismiss them while they are on statutory sick pay, they would continue to receive statutory sick pay for the duration of their notice period, assuming they remain too ill to work.

If someone has been with you four years and their notice period is four weeks, ie the statutory minimum, and is off sick, even if they remain unfit to work for their notice period, they must go up to full pay rather than stay on SSP.

”We now have a waiting list of people too sick to ever return to work who the skinflints won't dismiss due to cost.”

Doesn’t the thought of all that holiday pay racking up put them off keeping these people employed?

Don’t forget your holiday pay as well as you won’t have taken any during maternity leave

You'd have thought so flowery but I believe recent case law caps holiday pay at apx. 18 months. Besides, if they never dismiss them they'll never pay the holiday pay.

Its the kind of industry where they have a lot of casual workers to plug the permanent gaps, minimal training needed etc so operationally it's not an issue.

It helps to remember what notice actually is. It’s not money, it’s advance warning that something is going to happen. If you dismiss someone, you are notifying them a month (or whatever) in advance that on x date you are going to stop paying them and their employment will end. If you hand in your notice at work, you are just giving your employer advance warning that on x date you are going to stop showing up for work. Notice is time, not money, unless you are paying in lieu of notice.

It’s perfectly natural for managers to think that if they give someone notice who is off on long term leave, that person should continue to be paid for the duration of their notice at the rate they are currently on, whatever that is. They are not coming into work, so why would they suddenly start getting paid just because they are in their notice period?

Think of it that way, and think of the exception as being if someone is a) on long term leave and b) on statutory minimum notice, then in those specific circumstances, you pay them in full.