@exhausted305820
Thank you for this thread. I'm currently on maternity leave until next month.My company have been doing voluntary redundancies hoping enough people will go so they do not have to make compulsory ones. The issue is my department has been hit the hardest by Covid. They have actually more or less shut down my department and are trying to relocate us into other jobs where possible. My manager said they were hoping more people from my department would have took voluntary. There are other jobs within the company are very similar which I think they may be try to slot us into.
I have told my manager I am happy to be placed in another job even if it's not the same role. However what are my rights regarding that? If the job is higher paid/quite different do they have to interview me for the role/advertise it first?
The issue with the job roles similar to mine is they are all full time and I am part time. My manager said I can't have my hours increased and I don't want them to be increased as it wouldn't make sense anyway for child care cost reasons.
Also how long does my maternity rights last after I return? I have heard it is 6 months but just wanted to make sure.
Thank you
Hi exhausted305820,
I’m sorry to hear that you have been affected by redundancy. You, along with other individuals on maternity leave (and some other types of family leave) have certain protection in a redundancy situation. You are not protected from selection and can still be made redundant, however, you may have a right of first refusal for alternative roles that you mention, which I will talk about below.
What are my rights regarding alternative roles?
If you are absent on maternity leave at the time of redundancy, you will have a right of first refusal for any “suitable alternative vacancy” if such a role is available, even if you are not the employer’s first choice. The role must be a “suitable alternative vacancy” for this protection to apply. However, an important point to note is that, the protection regarding suitable alternative vacancies comes to an end when you return to work after maternity leave. The government consulted in early 2019 on whether to extend this protection under regulation 10 to cover the period from when the women first informs her employer of her pregnancy to six months after her return to work, and has committed to introducing this reform, however, the law has not currently been changed.
To be classed as a “suitable alternative vacancy”, the work involved in the new role must be suitable, appropriate and the location and other terms and conditions not substantially less favourable than in your current job. Looking at the factors you have mentioned:
Different role – If an alternative vacancy is notably different to your current job in terms of the skills and experience required, then it is not likely to be considered a suitable vacancy, and while you can apply, you would not have the right to be offered it automatically at all, or ahead of others. However, if it is only different in terms of, for example, the job title but the skills and experience required are substantially the same as those you have demonstrated through your current role, then this is arguably a “suitable alternative vacancy” and you would have a right of first refusal provided this happens during your maternity leave.
Higher pay – Where an alternative vacancy has a higher pay, this should not, by itself, determine whether it is suitable or not. However, if the higher pay reflects a higher level of skill and experience required for the role which you do not have, then the role may be different enough to be equally open to you and the other members of staff at risk of redundancy to apply for.
It may therefore be in your interest to be able to show that the relevant roles that you are interested in should each legally be classed as a “suitable alternative vacancy” i.e. by demonstrating that you have the necessary skills and experience and that the terms are not substantially less favourable. Depending on what stage in the redundancy process your employer is at, they might already have classed certain roles as “suitable alternative vacancies” and perhaps just wanted to ascertain your interest in the roles in the first instance before offering any to you as a priority. It might be worth you raising this with your employer, explaining that you understand the relevant roles are “suitable alternative vacancies” and checking that these are therefore going to be offered to you, whilst being prepared to explain your reasoning.
If the case is as I suspect, and the redundancy will not be effective until you have returned to work, then there is no special treatment, however, you cannot be discriminated against because of your maternity leave. Your employer should not penalise you for being off, or mark you down in interviews for not having up-to-date examples etc.
Do I have to interview for the roles?
If the role is classed as a “suitable alternative vacancy” and the redundancy takes place while you are on maternity leave, then you are not required to go through an application or interview process where the other members of staff are not protected and you have the right of first refusal. However, once you return to work, and your right of first refusal expires, you may need to apply in the usual way.
In terms of attending an interview, legally there is no concrete answer on asking you back in during maternity leave for this purpose. In practice, if an interview process is required, your employer would have to give you sufficient notice and should ask you to use a Keeping In Touch (KIT) day and pay you for it (assuming the other candidates are attending on work time). If you have used up your 10 KIT days, then that could cause a problem because technically working on an 11th day would automatically terminate your maternity leave. You should also explain that you will be disadvantaged as a result of your maternity leave and no longer being in “work mode”. Ideally the employer would then factor that in, and certainly if they don’t you could argue that they discriminated against you on grounds of sex/maternity leave. If you are breastfeeding you may need to flag that too in case it impacts on you attending interview. It would be discriminatory if they took into account the fact that you are still on maternity leave as a reason not to offer you the role.
While I have flagged some discrimination concerns, I suggest raising these issues positively and working with your employer. You are keen to be offered a new job and so want to encourage your employer to offer you it either automatically or after interview. If they are not amenable to these suggestions you can then consider whether it is necessary to be more forceful about the discrimination angle. You can appeal against their decisions and raise a grievance (formally or informally) or pursue your rights in the tribunal. A word on timescales though: if your employment does end by reason of redundancy, you have 3 months (less one day) from the termination date to start a tribunal claim process via ACAS.
We hope that this has helped.