Please Help!! Being made redundant at 30 weeks!!!

[LouissieP]

Good morning to you all.

I would like some advice if at all possible please. My fiancée is 24 weeks pregnant and has just been informed by her employer that she is to be made redundant from her job. She has worked for the company (A well known DIY store) for the past 5 years. The company has said it is going through a ?Restructuring Programme? and has announced that 2 members of staff who both share the same job title, were to be made redundant. There are currently 4 employees, including my girlfriend, who have the same job title, 3 of them male.
Since the announcement was made, it is rumoured the other person involved may have been offered a different job within the business, but this may be speculation.
Her employer has known for several weeks that she is pregnant, due to her having a heart condition and needing regular check-ups for both her and the baby throughout the pregnancy.

I have a couple of questions I would like answered??

I have been trawling through various websites on the internet looking for advice as I feel my girlfriend has been discriminated against for being pregnant. After reading many forums and overloading my brain, I found this link www.adviceguide.org.uk/index/life/employment/redundancy.htm#situations
Via the CAB website which states,
?It is unlawful to choose people for redundancy on the basis of their disability, sex, race, religion, sexuality or age. This would be discrimination. However an employer may be able to choose people for redundancy based on how long they have been working there.
It is also unlawful to choose people for redundancy because they are part-time or pregnant, as this would be sex discrimination. This is the case even if you have agreed to be chosen for redundancy on this basis.?
If this statement is correct, do we have a substantive case against the employer for unfair dismissal?

Secondly, my girlfriend will be at 30 weeks when she leaves the business. Her last day of employment will be 26th November. Will the company be responsible for paying SMP as well as her redundancy pay, or will she have to apply for MP? I did read somewhere if you are still employed 15 weeks before your due date you will still be entitled to SMP from your employer, even if you then leave employment. I do know the company would have paid 90% of earnings for the first six weeks if she were still employed, but am not sure if they are obliged to do this now. If this is the case, Would I be right in saying she would receive 5 weeks redundancy pay, plus the 6 weeks pay at 90% salary followed by SMP for the remainder of maternity period?

I am confused as to which benefits we are eligible for!

I would be very grateful for any advice you can give to us!!

Many thanks for taking the time to read our little dilema.

I know nothing about benefits I am afraid.

In terms of maternity pay, statutory maternity pay is 90% of pay for the first 6 weeks and then just under £120 per week after that (it keeps being 90% of pay if 90% is less than £120).

You are entitled to maternity pay if you are 15 weeks from you EWC (estimated week of childbirth) when your employment ends. However, the SMP cannot start to be paid until 11 weeks before the EWC, so if you leave at 25 weeks, it will be a few more weeks before the SMP money starts coming in.

For redundancy pay, you get a week's pay per year of service, capped at £330 per week (i.e. if you earn more than £330, you get £330). Certain older age groups get more, but I am guessing she doesn't fall into these. She will either serve or be paid in lieu of her notice on top of that.

Now the big question. If you select someone for redundancy because of their pregnancy then yes, it is sex discrimination. You can obtain compensation for all resulting loss of earnings, plus an amount for injury to feelings (this isn't telephone number amounts like in the States, but could still be a very useful couple of thousand pounds). A woman actually on maternity leave at risk of redundancy has the right to priority treatment for another vacancy. This doesn't apply during pregnancy, but if vacancies are being discussed with other people and not your girlfriend, this sounds dodgy.

I can't really say whether you have a strong case. You would need a lot more information. But it does sound potentially iffy.I would strongly think about going to the CAB, or finding a solicitor who will do an initial meeting for free. Also, check your household insurance as you may have legal expenses insurance.

If there is suitable alternative employment within the company, it has to be offered to any pregnant employees or employees on maternity leave before being offered to anyone else. So if your g/f's colleague has been offered alternative employment but she hasn't, then that is discrimination.

Has the company gone through a consultation process?

You said that they are making 2 people redundant who have the same role title, of which one is your partner, but there are 4 people doing the same role?

Have they just selected her and one of the men without using any process? What criteria have they used?

I would say that if they have not consulted and have not used any clear criteria for selection then it is definately unlawful. She could claim sex discrimination and unfair dismissal.

If they have gone through a selection process and she has agreed to it subsequently being given notice then I would say it likely not unfair.

However if there is any other role in the organisation at the same level then she has to be given preferential treatment (strictly this is people on mat not pregnant but it would look like they are doing it because pregnant). So if the other male employee secured a role at the same level she could claim discrimination. She'd have to use the internal grievance processes first.

Must just disagree with Freckle. Women who are pregnant and still at work have no extra protection and an employer is not obliged to offer them alternative work before anyone else. This applies during maternity leave only.

However, before making a pregnant woman redundant, you would expect an employer to be ultra-careful that it was fair and justified and be able to demonstrate that.

An employer must, when making someone redundant, explain the selection criteria that has been used, which can be last in first out but also can include performance, attendance record, skills and experience, that kind of thing.

Has your fiancee been told what selection criteria were used?

They are still obliged to pay her SMP, you are right there, as long as she is employed 15 weeks before due date.

With that in mind, it seems to be very risky to make a pregnant woman redundant and to have very little business benefit. They have to pay SMP anyway, and won't have to pay salary for up to a year, plus can decide not to recruit a maternity cover and have a gap that way. Seems to make more sense, and to be less risky legally, to either make only one redundant and just allow the woman to go on maternity leave, and deal with the situation as and when she comes back, when things might have picked up, or to make two people redundant, not including the pregnant women, and benefit more financially from that.

Whether your fiancee has a good case for sex discrimination/unfair dismissal is difficult to say with the information given, but first step is to identify whether they've followed a fair procedure, and whether the criteria they've used for selection are fair.

Have a read here about selection for redundancy. Here about rights to consultation, including individual discussion about selection reasons.

No, sorry, I didn't make it clear. I know the rule applies to those on maternity leave, but, in order to avoid any accusations of discrimination, it would be a brave company which didn't also offer it to those who are pregnant.

Oh absolutely