Redundancy while on maternity leave

[Naetha]

Apologies for the new thread, but the subject matter on the old thread had meandered around so much I was getting lost!

The old thread is here.

Basically, they want to make 2 people out of a pool of 4 redundant, and I am one of them, currently on maternity leave.

They say they can do this, and this is all fine within the law - they say they've spoken to their legal team (which as a huge company, is probably fairly substantial) and consulted an external HR agent.

My argument (and one that the solicitor I spoke to last Thursday agreed with) is that because it is a scoring system (i.e. they are scoring me and my colleagues against eachother), they are treating the process not as a straightforwards redundancy, but as selection for posts. Therefore, as a woman on maternity leave, I should have priority for one of those posts.

Would this really stand up in court? If they pay a solicitor enough, and I represent myself, am I really going to be able to win?

I guess I'm just getting scared, but I'm aware that I could lose everything.

I have my appeal hearing on Wednesday (at which I am appealing the scores I was given - much lower than expected, and I don't think they took into account the fact that a) I haven't been there for 11 months, and b) I was pregnant for the last 8 months I worked there.) and I'm pretty nervous about that too - it's not nice to be told you're a bit of a failure in the first place, but to be told by someone more senior that yes, you're definitely a failure is going to be tough. I was going to have a work colleague come with me, but she can't make it now, so it's just going to be me and my LO crawling around at my feet.

Added to all this, it's completely the wrong time of the month for this, and combined with all the stress, I'm really struggling. I just know I'm going to break down into tears in this appeal. Any tactics for this to not happen?

Sorry, this thread's probably more for moral support, but it's definitely support I need!

Well you know my view but just to restate it.

In my non-legal but experienced and legally knowledgeable opinion, the law is clear on this. If they are selecting candidates from a pool for redundancy, there are two posts and four candidates for those posts, and one of those candidates is on maternity leave, then one of the posts must be offered to that candidate and she should not have to go through a selection process and compete with other candidates for a job.

If you want to appeal your score, postpone the hearing until you can have a colleague with you. If you explain why, they ought to give you enough time to find someone else. But consider not going at all. If your position is going to be that you shouldn't be involved in the scoring selection process at all I'd be inclined to consider not muddying the waters by appealing your score within a process you believe doesn't apply to you in the first place.

Have you actually been made redundant? You have been given notice, a termination date and so forth? In which case you can appeal that decision but the basis of your appeal should be that they haven't followed legal process for women on maternity leave and it is therefore automatic unfair dismissal, not the fact that you disagree with the score you've been given.

In terms of the legal advice they've taken, firstly if legal team means in house it is unlikely to include a specialist employment lawyer and I'm curious at the use of an external HR 'agent' rather than a solicitor when we're talking about a big company with reasonable financial resources at it's disposal.

Either way, legal advice can still be of varying quality, and more importantly, depends on receiving all and accurate information relating to the situation. You have no way of knowing whether that's the case. Similarly, neither do we on here, of course...

I don't know the law exactly myself, but at my Mums work something similar was going to happen. They were making 3 people redundant and one was on ML. They said they could all apply for this one new post that was going to be made, but the directors of the firm have now relaised that they must offer it to the girl on ML as that is what the law states. I think you are right that one of the two jobs must go to you.

Good luck

Naetha, listen to flowery! I agree that you ought to withdraw from appealing the scores as clearly this should not be a consideration, in your view. You need to lessen the stress. Restate your position in writing to them and ask them to respond in writing also. (sorry don't have time to read old thread if you've already done this) But best of luck, hugs to you for going through such a stressful process....

Agree - don't go to the scoring appeal. They could argue that your appealing this implicitly implies your agreement to the scoring system.

and yes if they make you redundant you have a definite claim for unfair dismissal on the grounds of sex discrimination - which probably wouldn't even get to court!

Thanks for the support folks - sorry I was just having a crisis of confidence - the HR person I'm dealing with is (in my opinion anyway) being a bit of a bitch.

OK, how best to withdraw my appeal, then? It was submitted by email, so I guess another email should do?

And then what's the process? When do they need to tell me I'm being made redundant?

Is it best to issue my formal grievance (which I believe is the beginning of the tribunal process) after I know I've been made redundant, or should I submit it now?

Sorry I'm very forgetful...

...and what should I do about the alternative job they are offering me? I don't believe that it's suitable for me. Although it is within the same field that I work, and at the same grade, there is much work that I have no personal aptitude for (statistics, commercial and technical due diligence, corporate transactions). I would need a significant amount of training to get me up to the equivalent level of where I am in my current job.

In addition to this (and this is the main thing for me) although the location is listed as either Manchester or Leeds, I know the only other person I would be working with is based in the Manchester office (I'm currently based out of the Leeds office, but live about 20 miles away). I know from previous experience of working with people from other offices, it involves a LOT of travelling - especially with the amount of training that would have to be involved. Realistically, with me working 3 days a week, and my restrictions for nursery times (I can't drop him off earlier than 8, or pick him up later than 6) that this would severely limit my working day for any time that I have to work from the Manchester office. When I mentioned this in my last meeting, they seemed to think this wasn't an issue, but I don't want to be spending all my time travelling to Manchester, or alternatively stuck in an office doing a job with no support because the rest of my team is 50 miles away.

So anyway (sorry to waffle a little), if I am made redundant, will they offer me this job, and if they do, what should my response be? I'm sure I read somewhere that if I refuse a job that is deemed suitable that I lose any entitlement to redundancy pay?

Again, sorry for being a pain - I just can't afford to mess this up, and need my hand holding a little!

Guys, can I just bump this thread again!

I've formally been made redundant, so I'm guessing the next stage is to appeal this decision. This is what I have so far in writing - how much more detail do I need?

To whom it may concern:

On 10th December 2008 I was informed that following consultation, xxx had decided that my role had been made redundant.
I would like to appeal against this decision based on the fact that xxx hasn't followed legal process for women on maternity leave and it is therefore considered to be unfair dismissal.
Please reply within 7 days from the date of receipt of this letter.
Yours sincerely,

What will be the procedure from there? An appeal hearing?

Naetha sorry I must have missed your last post.

In terms of an appeal I'd be inclined to just cut and paste the following from the Equality & Human Rights Commission:

-------
If an employee on maternity leave is to be made redundant (for whatever reason) and there is a suitable available vacancy, the employer must offer it first to the woman on maternity leave. This is a rare case where legislation requires a form of positive discrimination. If an employer does not comply with regulation 10 of the Maternity and Parental Leave Regulations 1999 (MPLR) an employee will have a claim for automatically unfair dismissal under the ERA s 99.

Regulation 10 of the MPLR 1999 states:
This regulation applies where, during an employee's ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment.
Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with paragraph (3) (and takes effect immediately on the ending of her employment under the previous contract).
The new contract of employment must be such that -
a the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and
b its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract.
---------

I'd say put your first sentence as you've put them, but add the date you will be redundant - so 'xx had decided that my role had been made redundant with a termination date of xx'. Second sentence leave as it is, then as supporting information, then cut and paste those paragraphs.

If you feel there might be a sex discrimination issue as well - in other words you don't feel you would have been made redundant if you were not on maternity leave - then you should consider saying that and also cutting and pasting the following -

-------
An employee who is made redundant whilst on maternity leave will also have a sex discrimination claim:
if there is not a genuine redundancy situation but it is used as a pretext to dismiss her for reasons relating to her absence on maternity leave or because she has a baby;
or
if she is excluded from the normal redundancy procedure, such as being consulted, due to being on maternity leave, or
if she is made redundant when there was a suitable available vacancy which, but for her maternity leave she would have been transferred or promoted into.
--------

The procedure will be an appeal hearing, yes.

If you think the sex discrimination part applies, that means you would have two grounds for appeal. Firstly that they did not follow the required procedure for a woman on maternity leave, which is unfair dismissal, and secondly that you would not have been made redundant but for the fact that you were on maternity leave, which is sex discrimination. So if that's the case you should put that you are appealing on two grounds. 1) blah blah blah, then give the supporting information, then 2) blah blah blah, then give supporting information.

Thanks again FBB, you're a godsend

I've used this wording as additional explanation (the explanation that they have always refuted).

-----
Due to the fact that the redundancy process involved selection criteria against which each individual in the pool was scored against, the positions available for whom the individuals were being selected should have been considered as vacancies, and not filled positions. Therefore, one of these positions should have been offered to myself as a woman on maternity leave, prior to being offered to anyone else in the pool, as it was the most suitable available position.
------

Does that sound a) legally correct, and b) logical?

As for the sexual discrimination, well that's a tough one. There is another pool of 4 consultants at the same level of me that do a slightly different job within the same department, that are no less affected by the economic climate (that was the whole reason for the redundancies in the first place) but none of those were considered for redundancy. I would have thought that they would have made one position redundant from each pool, rather than two from one pool and none from another. Personally, I believe they used this as an opportunity to "push" out two people - one being the person who took VR, and the other being myself. I'll admit I haven't been the best worker over the past two years (although I've only been there for one of those two years!), but I believe I've had fairly mitigating circumstances - genuine illness (gall bladder operation) and pregnancy related illness (chronic debilitating headaches, nausea and fatigue).

Of the three pools that had redundancies in them, two had women on, or recently returned (i.e. the week before) from maternity leave, and the other was the last management level person to join.

I don't know, maybe I'm seeing conspiracies, but it does seem that they made positions redundant where they expected people to either take VR, or not be too bothered anyway.

Anyway, sorry I'm getting distracted - if you could OK that wording above, I'd be very grateful!

I'd say

Further to your letter of xxx date in which the selection criteria were explained, I understand that I am part of a pool of x(number) employees, from which group x people are being selected for redundancy and the other x will be retained in the x positions left available. How the remaining x positions are filled has been decided based on the scores awarded to each of the x people in the pool. Regulation 10 of the Maternity and Parental Leave Regulations (1999) states that as a woman on maternity leave, if there is a suitable position, I must be offered it in preference to other employees and cannot be put in a pool for selection for the post in competition with others.

Hi, i just wondered what the outcome to this situation was. I am in an almost identical situation and wondering whether it is worth the stress and expense or going ahead with an unfair dismissal case. Any advice would be appreciated.

Hi would also like to know the outcome. I am in a similar situation in that I am on maternity leave from a large organisation and am due to be made redundant at the end of March. Their policy is to help me find suitable alternative work, however I was interviewed but turned down for another job, even though they say I would have been suitable and came second. The HR dept admits their policy has failed. It seems I have a good case for unfair dismissal, however do I want to go through the inevitable stress of an employment tribunal etc and burn my bridges with that company as far as future employment goes? Any advice gratefully received.

Hi, can I add another question to this thread please.
If I am pg (just), but not on maternity leave, how does the redundancy issue work? Presumably I can still be made redundant before I start maternity leave, as the rights are only for when you are actually ON maternity leave?

Just to update, I was made redundant, and am about to submit my claim to an employment tribunal for unfair dismissal (and by default because I was on maternity leave) sexual discrimination.

Wriggle - as far as I'm aware, you can be made redundant while pregnant but not on maternity leave, but if there's any inkling that your redundancy is linked to the fact that you're pregnant (and about to go on Mat leave) then they're guilty of sexual discrimination.

Will update when I get a result from the tribunal.

Great best of luck. Any indication how long it will take? I have submitted a formal grievance from with my work on the advice of a solicitor. In the meantime they have offered me an interview for another job which is less suitable in terms of my experience and qualifications than the first one for which I was turned down. Does anyone know if I accept this it will dilute or diminish my claim to the first?

Good on you Naetha!! You go for it.

My employer is trying to make me redundant.
At the moment I have two tribunal cases against them for not conducting a risk assessment when i was pregnant and another for not sending me the internal vacancies.
I have just lodged another grievance with them for failing to pay my bonus correctly as it was a few weeks short.

And i am applying for flexible working.

They also employed a guy on a PERMANENT contract to cover my maternity leave!! So as it is getting nearer to the point that i am returning to work they are now saying that there are one to many people employed!!!

They are also restructuring the team to change the contracts that we cover, as we are based all over the UK.

I think i have well and truly burnt my bridges with them, and my new line manager is a complete bitch.

I would like all of your opinions on something though.

I was given one weeks notice to attend the colsultation meeting which was about 80 miles from my home. Obviously as I am on maternity leave i don't have childcare and there is a waiting list. The only choice i had to attend the meeting was to drive an extra 135 miles each way to drop my daughter off at my mums.

My work are saying that to claim that additional mileage is unreasonable, but i don't think so. What childcare provider would take a 6 month old child at 6am in the morning at very short notice??

As part of my role i had a company car, which i returned to them, but if i still had it then they would have paid my fuel costs anywy.

Please give me your opinion as i hope it's not just all in my head! I think my new line manager has got it in for me because of the tribunals i've raised against them!

Sorry for going on and on, but i'm disgusted at how badly companies treat women who are pregnant and on maternity leave!! We should not let them get away with it!!!

Thanks

Redundancy during Maternity Leave is not automatic SD. You will still need to prove that the reason for your redundancy is a reason related to your maternity leave. To prove most SD cases, you need to have a male comparator to prove that you were treated differently to way a male would have been. In a Mat leave SD case though, you do not require a male comparator, but do need to show that "But for your maternity leave, you would not have made redundant" In my case, it was proven that the company had made a direct comparison between me and my replacement - had I not been pregnant and gone on Maternity leave, that comparison (in my case it was salary, but other case law compares performance) would never have been drawn and I would not have been made redundant. I was able to prove Unfair Dismissal and SD as none of the genuine reasons for redundancy were met and my job still exists, however if it was a genuine redundancy and they had followed all the correct procedure, they would have been quite within their rights to make me redundant. Good Luck to you all with you cases - It was long haul for me - although I won my case in July last year, I have only just received my award, following an unsuccessful appeal on their part. All in all worth the fight, but a very stressful 20 months it was.

Can anyone help me understand if I am actually going to be on maternity leave when the redundancy takes place and if I should
have been offered available post or gone through the selection process. My maternity leave is due to start in two weeks which is probably going to be before I am made redundant but the selection process has started 30 days ago while I had no special rights!? Thanks

Lola if you will be on maternity leave when your post will be made redundant, then you will have your special rights and should be offered a post. It doesn't matter that the consultation has already started, they must take into account the fact that when the redundancies will take effect, you will be on maternity leave and therefore must be offered a suitable post if there is one.

Thank you flowerybeanbag!
I've got one more question re consultation process as I am worried that my employer is going to rush it through for exactly this reason (to end it before my maternity leave starts). Can you advise if there is anything that they are obliged to do during consultation and also can they just decide to finish it at any point and hand me my redundancy paperwork? Are there any rules on when does it become effective from apart from 'after consultation' period. I am on 3 months notice also but my maternity leave due to start soon so I can't work my notice period in which case I assume my redundancy takes effect as soon as consultation ends?
Thanks for your help!

With a formal consultation period you should normally be told when it isn't due to end - do you not know this?

In terms of what they must do, it partially depends how many people will be made redundant but basically during the consultation period they should be explaining the criteria they will use to select redundancies, and listen to suggestions about that, and give employees the opportunity to suggest any alternatives to redundancies, or ways to reduce them, that kind of thing.

As far as when the redundancy would actually take effect, the fact that you wouldn't technically be at work during your notice period doesn't necessarily mean your employment would end before the end of your notice period. If everyone is being given the correct notice and allowed to work it, you should be given the same - you'll just be on maternity leave for part of it.

Your employer could pay in lieu of notice and terminate employment immediately, but it's very important to know whether they are contractually allowed to do this as it might make a big difference for you. You need to check your contract carefully to see if it says your employer can pay in lieu of notice. If it does, then technically they can end your employment immediately yes. However if they did this only to you to attempt to avoid their legal obligations with regard to your extra rights on maternity leave, that would be sex discrimination. If they are contractually allowed to do it and do it to everyone, then there might be little you can do about it.

If they are not contractually entitled to pay in lieu of notice, they still could, but because it would technically be a breach of contract, the 'notice' they pay must be effectively 'compensation' for doing so - ie the person must not be worse off than if they had been allowed to work their notice period. For most people this just means paying their notice and a bit of holiday, but for you it might mean a lot more than that, as by paying you in lieu of notice they could be denying you your extra rights.

Have you formally notified your employer of your extra rights - the fact that if there is a suitable job available you must be offered it as a priority because you will be on mat leave when the redundancy takes effect? I wouldn't assume they know about that legislation so i would write and make sure they do rather than having to potentially complain after the event.

Thanks for that. The consultation period should have ended already but I've only had one meeting in which a selection criteria was presented to me. I was then off sick and due my second consultation meeting tomorrow. I was wondering if they could finish it tomorrow and if the redundancy could become effective from tomorrow. (I suppose this all now depends on if they are going to pay in lieu of notice)This is why I never mentioned to them that I should have been offered a role as not technically on maternity leave at the moment. (so have gone through the selection process)
Just had a look at my contract which only mentions that they have the right to instruct me to stay at home during my notice period.
Can you please also explain the difference between not working notice pariod and being paid for it (which seems to be my contract) and the pay in lieu of notice?

You need to mention it to them so that they have the opportunity to take this into account when making their selection decisions.

Not working notice period because you are asked to stay at home is garden leave, and your employment would still not end until the end of your notice period.

Pay in lieu of notice means your employment ends immediately and you get a sum of money instead.

flowerybeanbag,

Can they still pay in lieu of notice even if that's not in the contract if that's what they pay to other people they are making redundant?