Maternity redundancy - suitable alternative vacancy.....

[SecondSecret]

Hi all,

Anyone with some knowledge legal or otherwise on the maternity protections in redundancy??

Have been put at risk of redundancy and am on maternity leave. Essentially it’s a situation where 5 staff in the department have all been put at risk (as we all do the same/very similar jobs) and employers proposal is to run the department with just 1 staff member in a new role (new job title and new job description however the actual job is 90-95% the job we are all already doing with obviously some more responsibility with just one person now doing it) Redundancy process is totally fair as there has been a massive reduction in work and I haven’t been discriminated against in being selected to be included in the pool, however:-

Employer is claiming that Section 10 maternity protections during redundancy of having the right to be offered suitable alternative work, if available, and in priority over others at risk of redundancy doesn’t apply as they don’t see the new role as being a ‘suitable alternative’ but are happy for me to apply and competitively score against the other 4 staff to compete for the new role.

How does it work if you think the role is suitable but the employer thinks it isn’t? Comparison of current role to this new position is same hours, same location, same full time permanent but has new job title, new job description (although essentially very similar to existing role in reality, almost the same), employer is saying new role is more ‘senior’ due to increased responsibility level with increased wage to reflect this (about 5k more than current wage)

Thoughts? I feel like they are trying to wriggle out of having to offer me the position as there is another employer who I reckon would be more preferable but I think my section 10 rights should apply as the job being suitable as it isn’t ‘any less favourable’ than my current position? Or am I just trying to twist it the way I want to see it?

Thanks in advance.

Do you mean instead of a competitive process between you and 4 colleagues, that you should just be given the job because you're on maternity? Or have I picked you up wrong?

@BlueBirdGreenFence - No that’s right, section 10 of the Maternity and Paternity Regulations 1999 says that if a suitable available vacancy exists a woman on maternity leave is entitled to be offered the position and without taking part in a competitive process (if the role is no less favourable than her current at risk position and is deemed suitable and appropriate)

I’m just not sure if anyone has ever had any experience where the employee felt the role was suitable but the employer didn’t?

Ultimately it would be for a tribunal to decide. If the salary is higher and the role is more senior, that could mean the decision to not offer it automatically is reasonable. Normally a suitable alternative would be on the same terms and conditions, or more or less.

If you don't get the role, and are then made redundant as a result, you would then need to bring a tribunal claim on the issue, basically, and a tribunal will determine whether the decision that section 10 doesn't apply in relation to this role was a reasonable one.

@flowery Ah great thanks - I thought that was probably the case. It’s just a bit of an odd one as the job description (tasks/skills included etc) is almost identical to the current jobs being done they have just lifted the title and the wage and I couldn’t find anything about if the alternative role was more favourable in terms of only salary and status (and only status because the role is to be the only one left in the department!) but lots of information about it not being able to be less favourable. Funnily enough also those of us who all do the same role currently are all on widely different salaries so although it may be a 5k ish rise in salary for me should one of the others be offered the role it would be less of pay rise (if that makes sense)
Much appreciated.

Have they specifically said in writing these are the reasons we believe the role is not 'suitable' under the Section 10 provision?

I'm in HR, and if I was advising employer I would advise them to give you the role automatically if it is 95% similar as you describe. The risk of a successful maternity discrimination case is high in this type of situation imo, so frankly would depend if your employer has enough money to want to take that risk for it to be tested as a 'suitable alternative' at a tribunal (it would take at least £15K in legal fees to even defend the claim).

I would get in touch with 'pregnant then screwed' through their helpline and they will be able to give you lots of support and advice.

If I was you I’d contact ACAS or maternity action, it’s free and correct advice.

I'm in HR, and if I was advising employer I would advise them to give you the role automatically if it is 95% similar as you describe

It's mad that the others wouldn't even get the chance to apply, just because one colleague is on mat leave. It's right that those maternity rights are protected but this just seems incredibly unfair.

I'm also in HR and have seen managers suddenly change the actual job content to get out of having to offer it to anyone on particular. So watch out for that as that may be their thinking here. But you may have a claim if the more senior elements do not take up much of the role, or if they could easily be trained up for.

I’m just not sure if anyone has ever had any experience where the employee felt the role was suitable but the employer didn’t?

Yes there is case law on this. Simpson vs Endsleigh Insurance. The EAT ruled that it is up to the employer to decide whether a role is suitable based on their knowledge of the current business needs, the employee and her work experience. As this was EAT, your ET should follow that ruling as it was set at a higher court.

Absolutely due to financial reasons where I currently work they are shoe horning people into any old role /site (multi site employer) and denying any liability for redundancy costs. Not right but I don't de decide the rules nor hold the purse strings. HR is most definitely there to protect the employer!

Thanks for the case red @Florencex I may need to start citing it soon.

@CloudsCanLookLikeSheep

You are welcome.

Note that the Simpson V Endsleigh case is specifically a redundancy whilst on maternity leave situation, not a general redundancy situation.

One of the arguments as to why the employer should be able to deem what is a suitable alternative in the maternity / redundancy situation is that the employee on maternity leave will have been away from the business for a prolonged period. They will therefore be less likely to have all the requisite knowledge required to determine if the role is suitable whereas the employer has access to all the required information.

Are you in a union OP?

No union - and I’ve only been on maternity for less than a month so in my personal opinion (although appreciate this doesn’t count for much!) the business hasn’t changed so much that I feel out of touch with what’s going on (but appreciate the reasoning behind the above) The role is essentially the same job (same tasks/responsibilities/skills involved) as original job but as mentioned mildly higher status and wage difference - I obviously think it should be classed as suitable. Will take a look into the case law for further reading but it seems like it’s going to be a case of difference of opinion and be up to a grievance/conciliatory/tribunal service if I want to argue it.

Surely it makes a difference if the 'competitive process' is actually a selection process to identify who from the pool is made redundant and who is not.
Isn't section 10 intended to ensure that if there are other suitable vacancies then you should be offered these. Not that you, as on mat leave/returning get preferential treatment within the redundncy selection?

@SecondSecret

No union - and I’ve only been on maternity for less than a month so in my personal opinion (although appreciate this doesn’t count for much!) the business hasn’t changed so much that I feel out of touch with what’s going on (but appreciate the reasoning behind the above) The role is essentially the same job (same tasks/responsibilities/skills involved) as original job but as mentioned mildly higher status and wage difference - I obviously think it should be classed as suitable. Will take a look into the case law for further reading but it seems like it’s going to be a case of difference of opinion and be up to a grievance/conciliatory/tribunal service if I want to argue it.

I was just reading the case again and it was actually the woman’s solicitor that was making the argument about the employer being better able to determine what was a suitable alternative. They argued it quite well.

They then tried to expand that argument to say that as such it was also up to the employer to prove that a position was not suitable. The employment appeal tribunal rejected this.

I have been reading some professional commentary on the case and this has been interpreted as meaning the employer gets to determine what is suitable - as they do not have to prove why something is not suitable. I have also read that employers should be prepared to justify their position upon challenge, so you might as well do that, although I would be surprised if they can’t come up with something though.

@Palavah

Surely it makes a difference if the 'competitive process' is actually a selection process to identify who from the pool is made redundant and who is not. Isn't section 10 intended to ensure that if there are other suitable vacancies then you should be offered these. Not that you, as on mat leave/returning get preferential treatment within the redundncy selection?

You are correct, if it is a pool situation with X roles reducing to Y roles and all roles being the same, the person on maternity leave is not entitled to automatically get the position. The only right they have is to not be unfairly discriminated against.

However the employer has confused things by claiming that the one position they will retain is a new role.

@Florencex - much appreciated. I’ve been having a read through a transcript (I think) of the EAT case (and bear in mind I am no lawyer or legal buff!) but there is an element in the EAT case where it looks like the employers lawyer suggests that the ET’s thoughts that it seems “that at the end of the day it is up to the employer, knowing what it does about the employee, to decide whether or not a vacancy is suitable” places a “very difficult task on employers when deciding, for example, whether or not to offer a more senior post to an employee who is on maternity leave” and the ET has also suggested that there was no reason why an employer could not choose to test suitability by assessment and interview, but the EAT goes on to state “We are by no means satisfied that an employer could choose to test suitability by assessment and interview”

Do I take that to mean that it is not a foregone conclusion that assessing suitability for a new role (under the section 10 maternity protections) either by scoring or interview is to be accepted as the EAT themselves were not happy to accept this? (I appreciate this doesn’t apply in my situation as I would be now be being scored/interviewed competitively rather than specifically for suitability for me alone to be offered priority but was just interesting to read)

I guess in this case example the roles available were deemed unsuitable due to the location change and the lack of interest from the lady on maternity in the roles available whereas I have shown complete interest in the new role and other than this issue over the salary/status level feel that the role is suitable and appropriate due to being no less favourable ...... but again, not a lawyer and guess it would come down to an external tribunal or otherwise decision.

I think I just need to decide whether I want to argue it or let it go.

But, OP, based on what @florencex has said, it's not about you getting first dibs on this new role. You are as entitled as any of the others in the pool to preference for the new role, and in that you should not be discriminated against as a result of your pregnancy,/mat leave, but you are not given it as a priority over others in the pool also facing redundancy.

@SecondSecret

I am sorry but I am not sure I understand the question in your latest post.

The employer should not perform an assessment for a suitable alternative role. However if there is a pool situation they should score the employee on maternity leave in the same manner as everyone else. Also if there is just another role, but it is not deemed a suitable alternative role, it can be filled in the usual manner.