Forced changes to contract T&Cs whilst on maternity

[MallardtheKing]

Just looking to see if what my employer is doing is legal –
I am in England.

I am currently on maternity leave, this is due to end 27th September 2020 after 52 weeks of leave. I only received SMP.

My employer is restructuring because of Covid implications and wants to reduce my job from 5 days (40 hours) a week to 2 days a week (16 hours) until such time as business picks up and I am currently being consulted on this, with my third and final meeting due to take place shortly.

My understanding was, if I don’t accept the change, I will be made redundant, which I was considering, however upon reading the paperwork again it states:

“As part of the consultation process you have been placed at risk of redundancy. Being at risk of redundancy means your role may no longer exist within the business, in its current form and unless an alternative proposal or role is agreed you could be served notice of a change to your contractual terms and conditions. “

So does this mean if I don’t accept I will be forced to resign, rather than be made redundant?

I have emailed my manager and HR to confirm but they're not getting back to me in a timely manner so I guess it means I would need to resign.

If this is the case, is this legal given the additional protection maternity leave affords me in redundancy situations?

Additionally – if anyone can advise:

The 2 days they wish for me to work are to be variable, as and when they please as per business needs. This effectively means I need to source and pay for childcare for 7 days a week, but will only be paid for 2 days, and my manager does not think he has to provide more than 48 hours notice of when I will be required to work. This is pretty unworkable for me, hence why I am considering refusing the change to contract and just being made redundant instead) – do I have any rights with regard to working pattern or notice required?

Thanks in advance for any advice.

They must offer you a similar job if it is not possible to return to your original job. That means pay, benefits, holiday entitlement and seniority are the same. They can make you redundant but, if they do, they must offer you any suitable alternative that is available even if you aren't the best candidate for the job.

They cannot force you to resign and you should not resign voluntarily - if you do, you will lose any right to redundancy pay. The paragraph you quote suggests they may try to force you to accept changes to your contract if you don't agree an alternative. Don't let them pull the wool over your eyes. They cannot change your contract without your consent. The only they can force a change to your contract is by dismissing you and re-employing you on the new terms. If they try that you may have a case for unfair dismissal and/or illegal discrimination. You may also have a case for discrimination if they make you redundant.

People sometimes over estimate the protection that returning from maternity leave offers. You cannot be made redundant because of maternity leave, however if the business is restructuring, reducing or whatever then you can be made redundant. And no you do not get priority over everybody else, because that would be discrimination against everyone else.

In the situation you describe, I don’t think your maternity is really elegant as it does not sound like you are being made redundant because of that, it sounds like a genuine downturn in business.

So as with every other employee they need to either offer you a “suitable alternative” or make you redundant, they can’t make you resign. A two day role is not a suitable alternative to a full time position and you can turn it down at which point they need to proceed with redundancy.

How long have you been there by the way? I have come across cases during covid where people have been pressured into accepting reduced hours and salary only to subsequently be made redundant anyway, but then redundancy pay is based on the reduced role.

*relevant not elegant. 😕

“As part of the consultation process you have been placed at risk of redundancy. Being at risk of redundancy means your role may no longer exist within the business, in its current form and unless an alternative proposal or role is agreed you could be served notice of a change to your contractual terms and conditions. “

That's not what redundancy means at all - that sentence doesn't actually make sense. If your role is redundant and therefore doesn't exist, your employer has to make reasonable efforts to retain you through alternative roles. That doesn't mean they can serve notice of a (forced) change. It means they can and should offer you alternatives where these are available.

If you unreasonably refuse a 'suitable alternative' to redundancy, you would be sacrificing your right to any statutory redundancy pay.

If you are on maternity leave at the point your own role is redundant, and there is a suitable alternative vacancy, they are obliged to offer that to you.

In both the above cases, a suitable alternative would be suitable for your skills and experience, and usually on no less favourable terms and conditions, ie same or similar hours, working pattern and pay. Whether a role is suitable is partly determined by individual circumstances.

The role you describe with much lower hours and variable hours is not a suitable alternative, so you are free to decline it, in which case you would be redundant.

Thanks everyone.

I have been there over 2 years so would be eligible for redundancy as well as being able to claim unfair/constructive dismissal etc. should the case arise.

The reduced hours is for a genuine reason and I don’t necessarily believe it to be a case of maternity discrimination. It is due to the effect of covid and I know there are no other suitable alternative roles in my place of work (as I am the only person who does my role already) although I am sceptical they have looked at any other sites the company operates but again, due to covid it is unlikely there would be anything anyway and then location may become an issue as well. However in response to @Florencex, I do believe those on maternity actually are legally given priority over everyone else and it is not considered discrimination against the others, but that’s not really the issue here anyway.

The change is being made on that basis that when business recovers, my hours should then be increased again but due to the government not currently confirming when my industry will be able to fully reopen yet, no one knows when this may be.

I have also looked into my original contract of employment, and it does unfortunately state that the company reserves the right to vary these terms and conditions. So I wonder if that is what is allowing them to offer either reduced contract or nothing, regardless of maternity leave.

If that is the case, then it does feel like I am being forced out by making the new contract terms as unworkable as possible for someone with childcare responsibilities. I just don’t know what to do…. I cannot afford to pay for childcare for 7 days a week so I am available for whatever they want whilst only being paid 2 days. But at the same time, I can’t quit and have no money coming in.

Even if I can get redundancy pay I’m still terrified of the prospect of being unemployed during these uncertain terms, the job market is terrible for my role at the moment. Such a shitty situation all round.

"I do believe those on maternity actually are legally given priority over everyone else"

Not true I'm afraid. The only additional protection a woman on maternity leave gets is if her role is made redundant, and there is a suitable alternative vacant role available, she must be offered it.

Women on maternity leave (or those on adoption leave or shared parental leave) don't get give priority during a redundancy process itself, and doing so may result in an unfair dismissal claim from affected employees.

I know you say that's not relevant here anyway, but it's important to get it right.

Yes, that is exactly the situation I was referring to, the legal right to be offered a suitable alternative vacancy over other colleagues.

From the ACAS handbook:

"Is there a suitable alternative vacancy?
Sometimes you might have alternative jobs that you can offer to
redundant employees. If you do, an employee on maternity leave who
has been selected for redundancy must be offered a suitable vacancy
before any other employee. "

I thought it was clear the context for the sentenace I wrote was regarding being offered a suitable alternative vacancy, not being made redundant in the first place.

”Yes, that is exactly the situation I was referring to, the legal right to be offered a suitable alternative vacancy over other colleagues.”

But that doesn’t apply to you OP. They are offering you a significant reduction in hours. Firstly that isn’t a suitable alternative and secondly they don’t seem to be making you compete for it against others. There is no additional protection during maternity leave that helps you. Unless there is a genuinely suitable alternative vacancy elsewhere in the business that they are not offering you?

I believe.... if you look right into it...

The keeping a similar roles and hours only apply if you take the 9 months paid leave. Those 3 extra months unpaid change the rules as such.

This was the only reason I went back after 9 months in my first job. 😬

www.citizensadvice.org.uk/work/rights-at-work/parental-rights/maternity-leave-your-options-when-it-ends/

It's after 6 Months you lose some rights. Loop Holes.

I don’t think they’ve done anything to warrant unfair dismissal claim unless there is more to the picture than written here.

You can ask to be made redundant though and you would be entitled to redundancy pay.

Thanks all.

Again, the issue is not about me being made redundant on maternity, nor whether I am being offered a suitable alternative vacancy.

Also for clarity in answer to @mumsofboys , even though I have taken both OML and AML, I would still be entitled to return to a job of similar terms, I would just lose the right to return my exact job, if this redundancy situation wasn’t happening – see guidance from ACAS here which goes into more detail than the CAB advice : www.acas.org.uk/your-maternity-leave-pay-and-other-rights/returning-to-work-after-having-a-baby

Again though, not the issue I am querying.

There seems to be two normal outcomes when an employee is placed at risk whilst on maternity, or indeed whenever an employee is placed at risk: A and B.

A = Offer suitable alternative vacancy if available.
B = Make employee redundant.

A is not possible, but instead of B, my employer seems to be offering a different option instead, C – where C = accept a change to reduced hours or voluntarily resign if you’re not happy with it.

That was my question, is there anything that allows that as all I can find online is about options A and B.

It seems the general consensus is that this is not usually allowed, which means I will now attempt to get some legal advice for my specific situation so thanks to all who have contributed.

I’m not sure you need legal advice at this point? You’re basing this on one statement where they literally contradict themselves within the same sentence and the fact they haven’t got back to you. I think that’s a bit of a leap to assume they’ll do the unlawful half of that sentence.

Refuse the alternative, and see what happens. If they refuse to pay redundancy pay, (even thought they’ve said it’s redundancy), you have a claim.