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!

flowerybeanbag,
I've just read this bit from your post again:

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.

I I think that that's what they are doing.
Is there anything I can do about this? Thanks!

As long as you are not worse off by them doing so, then no, there's not a lot you can do about it, or would want to do about it normally.

The key is they would need to make sure you would be no worse off than if your employment actually ended after (in your case) 3 months rather than immediately.

It's really key that you let them know about the legislation that means you must be offered jobs over and above others if you are made redundant during your maternity leave so that they can factor this into the equation, then take it from there. What should happen is that they take all that into account, and if there is a suitable job, offer it to you.

If there is one and they don't, and then make you redundant effective immediately, you can then appeal it on the basis that by breaching your contract and ending your employment without notice they are denying you the right to be offered a job that is suitable.

But write to them now and make them aware of the legislation first, hopefully then it won't become an issue, as you will get a suitable job.

Obviously if there isn't a suitable job available, it makes no difference anyway.

I have now been made red on the last day before my mat leave starts! Even though my role is now rudandant I will have to work my notice period when I come back from my mat leave?! (I've never heard of this before, this could be any time, whenever I give notice that I am coming back from mat leave). I think by doing this they are avoiding to make me red while on mleave.
This doesn't sound right to me, does anyone have any thoughts?
Thank you!

No, that's not right. If your notice period is 3 months and they are giving you notice of redundancy, then your employment should end, ie you should be redundant, in 3 months time. You can be on mat leave for a year and they are not in a position to tell you now that in a year and 3 months time, your job will be redundant. Who knows what the situation will be then? Either you are redundant now, in which case your employment ends in 3 months (or immediately, if they pay you in lieu of notice), or you are still employed. If, in a year's time, there is no job for you to go back to, they could then consider making you redundant, but they can't say that now.

flowerybeanbag,

Thank you very much for all your replies. You ongoing advice was really helpful. I hope this is all coming to an end now.
I received a letter from my employer which is slightly different form what I said above - my role is redundant but in recognition of my mat leave I would remain in employmnt and then on my return, they will review any suitable roles and if none - make red payments then?! I can appeal but to be honest can't see much point working for them as the trust is broken (it is obvious they want to get rid of me)- on the other hand don't want to appear not willing to accept this. Would it be unreasonable to offer compromise agreement or what would be the best strategy?

I don't think it's at all 'obvious' that they want rid of you, it sounded like a genuine redundancy situation from your earlier posts, and it sounded as though they didn't know about your extra rights early enough and are trying to remedy the situation by keeping you employed and then trying to find something when you come back if they can.

Was there a suitable post they could have offered you or not at the time posts were allocated? When you say 'would it be unreasonable to offer a compromise agreement' what do you mean? Do you mean should you offer one; ask for more money than you would get in a compulsory redundancy situation in return for going now? Unless you have a legitimate legal claim against them i can't see any reason for them to accept that tbh.

Advice required! I have been on maternity leave since April 08 and was informed in Dec 08 that my team was being restructured and we were in redundancy consultation. I was informed that I would have to apply for a role within the restructure and go through a selection process. I opted out of the consultation at this stage as I felt really daunted to go through a selection process having been out of the business for 6 months. I have just given my intention to return from maternity leave and have been told that my role has been made redundant. I have since discovered the legislation which means that I have should have been offered a role automatically in January and didn't need to go through a selection process. I feel a bit cheated here - where do I stand?

There's probably not a lot you can do by the sounds of things. There is a strict time limit for bringing sex discrimination and other tribunal claims, of 3 months following the incident or last in a series of incidents, so if this was in January and you haven't already at least raised a grievance about it you are out of time unfortunately.

Out of interest, what do you mean by 'opting out' of the consultation process? You were told that if you wanted a job in the new structure you would need to apply and go through a selection process, did you just not apply?

You are right that by the sounds of things it may well be the case that you should have been offered a role directly, but I'm just interested in the decision to opt out of the process - presumably you knew therefore that by deciding not to apply for selection for one of the new roles you would be redundant at that point?

thanks for your advice! I am really annoyed that I have left it too late. I was told in a letter from our HR department that I could apply for a role or opt out of the consultation process and just see what was around on my return to work. I didn't feel up to applying for a job as the selection process was really intense and my confidence was rock bottom even though I have worked for the company for 12 years!

I see what you mean, you were actively given an option to opt out.

Doesn't sound like you were treated appropriately, but as I say, nothing you can really do about it now. I hope as you've been there so long you at least got a decent payout, and hopefully you'll find something for you soon.

thanks for your advice.

I have a question: I have been on maternity leave since Oct 08 and I recently wrote to my work stating I was considering coming back in July for only 3 days a week, and would they support that. Yesterday I received a letter from them stating my role is at risk of redundancy and I need to attend a consultation meeting. They have said there is an alternative role to be considered but its £15k less than my original salary! Surely this isn't similar terms & conditions? My contractual notice period is 3 months. I've recently been advised independantly that my company only has to pay my notice period at my current income rate - ie SMA! Is this true?? Please help?

£15k less isn't similar terms and conditions, no, but that's only a problem if there is a suitable role that is on similar terms and conditions available that you aren't being offered/considered for. If there isn't a suitable role, there's no harm in them giving you the opportunity to go for a lesser role if you want to, and if you don't want to be considered for it your redundancy pay should not be affected as it is not a suitable alternative. Is there a suitable role that you are not being considered for/offered?

You are entitled to notice but at the moment that means notice on whatever you are on at the moment. Notice is about time, not money, although employers can pay in lieu of notice.

Notice pay during maternity leave is one of those areas which is a bit up for discussion in terms of case law at the moment as I understand it, but at present as long as they give you three months' notice there is no need for them to increase your pay back to normal rate during that time.

There are no other positions that I am aware of. SO what you are saying is that if they give me 3 months notice it will be 3 x nappy allowance?? If I agree on pay in lieu of notice then will the same apply - its in my contract that they can do this. I read that Pay in lieu of notice must be the equivilent to them allowing me to work the 3 months - well if thats the case it should be full pay, no?

Also, its states that statutory redundancy pay is based on your weekly salary prior to going on maternity leave - so why wouldn't contractoral notice be the same?

Pay in lieu of notice should be enough so that you are no worse off if your employment ended 3 month later rather than immediately. As you wouldn't be working or receiving salary during what would be your 3 months notice period, that's why it may not be paid at full pay rate.

It is a bit unclear at the moment, and could be worth challenging at least internally if they don't pay you in full. Am I right in thinking they haven't actually said they won't pay you in full yet anyway?

Have a read here, it's a bit technical but there is a section on redundancy and notice during maternity leave. You will see their opinion is the current situation could/may be challenged.

Thanks Flowerybeanbag - that's such a useful website!

Flowerybeanbag - if the role I am being offered does not meet similar T&C, but there isn't another role more suitable, can I go for unfair dismissal? Also, from speaking verbally to a few of my colleagues no one else has been notified of redundancy so they haven't followed a selection process? The last lot of redundancies were in March 2009, when 10 people were laid off.

I am going in for my consultation meeting on Mon 18 May. I should know after that what redundancy package they will offer.

How long do I have to make any decisions?

I've no idea whether you can go for unfair dismissal - you've not said anything so far that leads me necessarily to believe your dismissal would be unfair. They seem to be following a reasonable process, and you do say there are no other suitable positions anyway, so that all seems fine.

You mention that others haven't been notified as being at risk of redundancy. That's not necessarily a problem or relevant. It's perfectly possible to have a completely fair redundancy process only involving one person, depending on the circumstances in question and the reasons for redundancy. A simplified example would be if there is one person doing a particular job, and the organisation no longer needs anyone doing that job. The employer would not be expected to include other people in a 'selection process' where clearly there is only one person actually at risk.

Whether only you (as far as you are aware) being involved is fair or not I have no idea I'm afraid.

If by decisions you mean whether to claim unfair dismissal, you have three months. You would be expected to appeal the decision first.

Hi Flowerybeanbag - I wanted to update you on my situation. I've been for a consultation meeting during which I was told they are making middle management redundant and top management are taking over those responsibilities. During my ML my colleague was promoted into a top management position. This position was in fact discussed with both of us last year. I realise now that by offering him the role it has in tern made my role redundant. I challenged my work on this and they replied stating they are 'under no obligation to open up the role for competative appointment'. Is this true? Especially when they discussed this opportunity with me in 2008? Because of my PG announcement in 2008 they agreed for my colleague and I to jointly run the department both before and after my leave.

Also, they are not willing to confirm if my role will be made redundant until after I respond to their letter - responding to all the issues I have raised. Can they do this?

The other role offer is still on the table but it is not in line with my career path development so I am not interested.

They are also stating that if I opt for redundancy I will e required to work my 3 months notice (ML ends in Sept 09). Can they do this? I wrote to them in April stating I wanted to return in July 09. What do this now mean? Would I have to work July - Sept?

Any help you can give me is much appreciated.

Whether they were required to open up internal promotions for competitive appointment depends on their usual promotion/recruitment procedures, there's no legislation about how recruitment/promotion should be conducted specifically, just that it's illegal to discriminate.

You do say they 'discussed' the role with you though? What does that mean? Did you have the opportunity to apply? When your colleague was promoted did you raise it as an issue at the time?

Can't see a problem with not confirming your redundancy yet, no, it's up to them when they make someone redundant. If you have further issues then you can raise them, and you can of course appeal your redundancy when it is confirmed.

If and when they confirm your redundancy your notice period starts then, so if they give you three months notice of redundancy your employment ends three months after that date. There's nothing stopping them giving you more than three months notice technically, but if they make you redundant now and give you, say 6 months notice in an attempt to force you to come and work notice, then I'd suggest you appeal that as being unreasonable - there are things you can say about that. Wanting you to come and work in July for three months also undermines their claim that your position is redundant.

You can always delay your return from maternity leave as well, as long as you give 8 weeks' notice. If you delay it til September and they still try to get you to come back, that's even more unreasonable.

Hi Naetha,
any further news on your tribunal case? I am dead keen to hear as I am in almost indentical situation, my ET claim has been lodged and it will probably be Sept.Oct. time when I get to hear. I would be keen to hear if your case went to tribunal or if you received an out of court settlement etc.
thanks,

Hi Flowerybeanbag - I wonder if you have any thoughts on my situation which is similar to Lola11.

They are restructuring my dept at work which will create less jobs. They are merging 2 depts and the jobs will also be renamed.

However the job role is basically that of my old job with a few new tsks thrown in which I'm qualified for in any case.

I'm due to go on Mat leave at the end of July and our 30 day consultation period began at the end of May.

I'm wondering if it's worth bringing forward my Mat leave to the 31st of June? ( I have to give 28 days notice of the change so this is the earliest I can change it to)

Do you think this will benefit or make any difference to my situation?
Although it is possible that I will get offered the new role anyway I would prefer not to sit through a paper based test if I can avoid it.

Even though the 30 consultation period would be over by this stage assuming all goes as they plan the selection process still needs to take place which I'm hoping would take me into my Mat leave if I bring it forward.
I'd really appreciate some advice on this please.

Flowerybeanbag
They discussed the new role with myself and my colleague in Jan/Feb last year stating that my 'then' boss would be moving departments and we were both welcome to show interest in the position - which we did. I then announced my pregnancy the next month and they decided that we would therefore both jointly management the department so I could go on my leave then return and we would continue together. When my colleague was promoted in Jan 09 I did not specifically raise grievance, but I requested a meeting with my director to ask the status of my role in the restructure. I was told there were no changes to my role but it was safe. I have only raised the issue of the promotion as a result of this risk of redundancy.
My old boss called me today and told me they have discussed a different role which they will offer to me on my original salary. I am assuming therefore this is going to lose my rights to redundancy? I feel that I can't go back and work for them due to the way they have handled this situation, caused me a lot of stress, and generally effected my trust & confidence in them. I don't trust them not to manage me out at a later stage. Does this mean I now have to resign and walk away with nothing?

Hi Flowerybeanbag!
I just got bad news from my employer, am wondering if it is too late to do anything:
Due to reorganisation my position with the company was made redundant. 3 new similar if slightly senior positions were created and there are 3 of us competing for them. I was involved in the consultation process and was advised that the selection process was changed from scoring to interview and testing. I had to come in to the office with my 6 month old son as am in the middle of my maternity leave. I realise I was not at my best on the interview and tests, but I gave it my best shot and was not worried as assumed I should be offered one of the posts. However HR just phoned and said the company decided not to offer me the position. They sent me a list of posts open across the company suggesting to apply. I am worried sick as not sure if I am in a position to go and fail another interview. Is it too late for me to to something about it as by attending the interveiw I showed that I agree with the selection process and have only myself to blame that I failed or can I argue the case that I should not have been been subjected to the interview as am at a disadvantage having been out of work for 6 months?