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Original poster

Does anyone know if this is legal? (Redundancy related)

26 replies

SapphosRock · 13/05/2021 10:18

I've worked at my company over 4 years.

Went on maternity leave in March 2020

The business was badly hit by covid, and there were a lot of redundancies last year. I wasn't affected.

I was due to return in March 2021 but the business was still struggling. I offered to take a further 6 months unpaid leave with a view to retuning in September 2021. All fine.

I then spotted on LinkedIn my colleague (who I used to line manage) is now officially doing my role.

While I was on unpaid leave colleague employed a junior exec to do his old role.

Found out last week I am being made redundant and HR are extremely keen for me to sign a settlement agreement ASAP.

Is this legal? It seems dodgy to me but I'm not sure if it's worth pursuing or not.

OP posts:
cherrytreecottage · 13/05/2021 10:28

I'm no professional, but also seems dodgy to me. Why did you offer to take unpaid leave? The furlough scheme was introduced to help those businesses who were struggling in order to safeguard employees roles. If they've promoted someone into your position and then hired someone else to fill the role beneath, they didn't need for you to take unpaid leave?!
That said, your role isn't "redundant" if this other colleague is doing your exact job.

Original poster
SapphosRock · 13/05/2021 10:33

I had a without prejudice discussion with HR at the beginning of the year and offered to take the unpaid leave as the business was in a precarious state and it meant I would have more time with DC.

The agreement was if they needed me back sooner than September I would return with 8 weeks notice. But they decided to employ somebody else instead.

OP posts:
LIZS · 13/05/2021 10:35

They only have to hold "your" role for the duration of ml. The unpaid leave is effectively like a career break and only reserves you the right to be offered an equivalent role if there is one available. I'm not sure they even have to offer redundancy if there is no such role. Might be worth a call to ACAS.

Original poster
SapphosRock · 13/05/2021 10:42

Oh thanks LIZS that is interesting. I will give ACAS a call

OP posts:
Changemusthappen · 13/05/2021 10:46

Also consider Citizens Advice, my local one has an ex lawyer who specialises in employment law.

Surely if someone else is doing your role then it is still there? They can't just promote or employ someone new. When I went on maternity leave someone covered my role and then I stepped back into it when I returned.

CardinalLolzy · 13/05/2021 10:47

Not an expert but isn't it the role that has to be made redundant? Which it doesn't sound like it is. Mat leave prob complicates it as well. Sorry you are going through this Flowers

Changemusthappen · 13/05/2021 10:47

Just also to add, I ended up taking my employer to tribunal and they increased my payout because they weren't following the law. Companies cannot then not employ anyone else in that role for 12 months. Of course I realise that companies find ways around this however I believe that's the rule.

ArosGartref · 13/05/2021 10:57

You are not being made redundant. If they want you to sign a settlement agreement, they are giving you money in exchange for your employment rights. They should pay for a solicitor to review it. You can then get a sense of whether it's the best settlement for you.

Original poster
SapphosRock · 13/05/2021 11:26

Yes good point it is the role being made redundant not the person. Having another look at colleague's LinkedIn he's basically copied all of my profile, pretty much word for word!

I spoke to a solicitor earlier this week about the settlement agreement. She's on leave until Monday but I will ask her to review the situation in light of colleague taking over my role.

I wasn't that keen to go back so I'm not too upset about the redundancy itself but it does feel like I've been treated unfairly. I would be happy to discuss an increase in the payout!

OP posts:
prh47bridge · 13/05/2021 14:32

ArasGartref is right.

There is a settlement agreement on the table. This is not a redundancy and the rules around redundancy do not apply. You will not be able to take action against your employer on the grounds that this is an unfair redundancy.

HasaDigaEebowai · 13/05/2021 14:35

Changemusthappen, that isn’t correct information you’ve posted I’m afraid. I’m an employment solicitor.

SubParbanMum · 13/05/2021 14:49

Have they actually told you you’re being made redundant?
Your exactly role is not protected for more than 26 weeks so they can give it to someone else after that time (although they should tell you!)

prh47bridge · 13/05/2021 14:55

Have they actually told you you’re being made redundant?

They have offered a settlement agreement. They may talk about redundancy because that is a term most people understand, but this is not really a redundancy. They are offering the OP a sum of money to leave and give up her right to take them to tribunal.

SubParbanMum · 13/05/2021 16:33

@prh47bridge totally agree, just think it’s a weird thing to do because a redundancy is far more regulated and open to questions than the employer explaining this is a settlement agreement. Better to be honest and not have poor OP questioning that someone has taken her job.
Also checking as enhanced severance pay for redundancy can come with a doc often called a settlement agreement.

Original poster
SapphosRock · 13/05/2021 16:37

I spoke to ACAS who were really helpful. They said as me and colleague have similar skills we should have both been given the opportunity to apply for the remaining role rather than it automatically being given to him.

She also said being on maternity leave is a protected characteristic under the Equality Act. She says I have a strong case for unfair dismissal.

I emailed HR with words to this effect and saying I would be willing to negotiate an increase in the settlement to avoid going down the grievance route.

OP posts:
prh47bridge · 13/05/2021 17:00

I would strongly recommend leaving any negotiations to your solicitor. They will have plenty of experience of this and will know how to approach it. The risk if you do it yourself is that your employer takes the settlement agreement off the table and sacks you. You will then have to take them to tribunal to get any compensation, which would be months of stress with the possibility that the tribunal may find against you, leaving you with nothing.

incenseandpeppermints · 13/05/2021 17:05

Make sure you screenshot your colleague's LinkedIn profile as it may suddenly disappear or be amended...

Wr1ggleWren · 14/05/2021 17:21

Does the company have any written terms & conditions about unpaid leave ?

I thought that most companies had a policy whereby, to receive maternity pay, that you had to return to work for a minimum amount of weeks after your maternity ?

Did you acrrue any paid holiday, whilst on maternity pay ?

Wr1ggleWren · 14/05/2021 17:23

Have they put your redundancy terms in writing ?

Last date of work
Exact amount of money due to be paid

Original poster
SapphosRock · 14/05/2021 19:07

Yes they put it all in writing.

I spoke to employment solicitor who said I have a very strong case for unfair dismissal as I have clear proof I've been discriminated against on the grounds of pregnancy and maternity.

He said in a case like this an employment tribunal would likely award minimum 1 years salary and around £15k for injured feelings. Nearly fell off my chair!

He suggested offering to take 9 months gross salary + the statutory as a settlement which I have done. I thought HR would laugh in my face but they took it seriously and are getting back to me next week.

OP posts:
BettyBurntBuns · 13/06/2021 02:48

How did it go? Also who is paying for the solicitor?

Weenurse · 13/06/2021 03:49

Any news?

Original poster
SapphosRock · 19/06/2021 13:37

Just to update, after a lot of negotiation we finally settled on 6 months full pay + the standard redundancy package.

HR eventually acknowledged that I had a case for unfair dismissal and were willing to increase the settlement to avoid it.

Happy with that!

My work paid the solicitors feeGrin

OP posts:
Weenurse · 19/06/2021 13:50

Well done, good update

vivainsomnia · 19/06/2021 18:35

Well didn't you get a good deal considering you didn't want to go back anyway.