Another redundancy question -

[LoveBeingAMummy]

I'm in a pool of 4 where we are being considered for 1 job. 1 of us is currently on Mat leave, from other threads am I right in thinking they HAVE to offer her the job?

Not legally no, but they might have more trouble if they do not offer it to her.

Yes you are right LoveBeingaMummy. It's one of those very rare instances of positive discrimination. If there is a job there that is suitable for the woman on maternity leave, which this job obviously is, she must be offered it, she can't be made to compete or go up against others in terms of skills or other criteria. If she's on maternity leave and the job is suitable, it must be offered to her.

Of course, whether your employer knows this or not is another matter, many don't.

See here section from Equality Human Rights website about redundancy during maternity leave.

What flowery said....

Not sure that is quite right. The 4 of you will be compared and the 3 who do the worst will then be at risk of redundancy unless alternative employment can be found - the other person will keep the remaining job. It is at this point that the issue of the maternity leave comes into play i.e. if there are any OTHER jobs available the woman on maternity leave gets priority.

I think it depends whether all four old jobs are disappearing and one new job is being created, in which case Flowery would be right, or whether there are three old jobs disappearing, and one old job remaining, in which case it is a question of selection as Finchley says. However the employer will have to be careful not to apply any discriminatory selection criteria in choosing who gets that one job.

There are 4 of us contracted to do the same job, going forward there will be 1 person doing this job.

If they have to give it to her, why haven't the rest of us been told about this? We have been offered VR or going forward for the selection process. But if the selection process is basically she's on mat leave then where's the choice?

Just wondering but what would ahve happened if two people were on mat leave? I've just returned to work.

PS thanks for the replies x

They may not know about the requirement. Is the available the job the same as the one you currently do? If so I'm afraid Flowery is correct and she is entitled to be given the job.

Not many HR people know about this requirement, so if you work for a company that is not experienced in redundancy programmes then they may not be aware.

Love Being a Mummy - I think what you are saying is all 4 of you do the same job and the decision has been taken to reduce down from 4 to 1 the person doing that job. (i.e. there is no new role being created). If so, then I think the position should be as I set out above i.e. the woman on maternity does not automatically get the job she gets first dibs on any alternatives.

The legislation is quite clear, if there is a suitable job, it must be offered to the woman on maternity in preference to anyone else. She can't be compared with others in terms of criteria such as performance, attendance, disciplinary record or anything else. If there is a pool situation, 4 people for 1 job, as described in the OP, then it belongs to the woman on maternity leave. If there are 4 people currently doing the job, and there will be only 1 going forward, she must be offered it over anyone else. It doesn't have to be a 'new' job or anything.

I imagine they don't know this LoveBeing, which is why you've not been told.

In the event of two people being on maternity leave, then the other criteria can come into play, and whichever of them meets the criteria better can be offered that job, and if there are any suitable alternatives anywhere else in the organisation, the other woman should then be offered those.

Thanks Guys

Flowery thanks for that, it would suprise me if they didn't know they are a very large Banking organisation recently in the news (thanks Fred!) and have some experience with these things.

Should they have made us aware of this BEFORE or even instead of giving us a choice cause there's not really a choice and we were told it would be done one the selection process?

Still agree with Finchley. There is a difference between there being a vacancy which someone on ML has to be offered (would be the case if this was one new job) or being selected for red, in which case she is in the selection pool and can be made red.

the point is that there is a suitable alternative vacancy in the first scenario and not in the second.

They should explain what selection criteria they are using and also tell you your score and where you come in the pecking order, but they shouldn't tell you the details of anyone else's score.

Would you get a better deal if you took VR than if you waited and were made redundant?

It is the same either way.

There is no distinction made in the legislation about it having to be a newly created vacancy. There are 4 people at risk of redundancy and there is one vacancy which is suitable for each of them. The fact that the vacancy is the same as the job they are all doing makes no difference, it only makes it even clearer that the vacancy is in fact suitable for the woman on maternity leave.

It really wouldn't surprise me if they don't know, being a big organisation doesn't necessarily mean superior employment law knowledge - I only came across this myself when it was pointed out to me by a woman in the exact same position - 2 people doing the same job, one on maternity leave, reducing to one person. I was going to apply selection criteria to them both, but then the individual on maternity leave took advice and pointed out this legislation.

Having checked it with lots of employment lawyers and even purchasing a copy of the statute, as it is so counter-intuitive, it became clear we had to offer the post to the woman on maternity leave. I also got DH to check it with an employment law colleague of his, who said that unfortunately even lots of employment lawyers don't seem to know this.

Thanks Flowery - I surpose my final question is whether they should have informed us about this at the stage where we are being asked to decide if we want VR or to be put forward for the selection process? This implies they do not know about it as they are offering us a choice that doesn't exist!

I think it's fairly clear they don't know they have to give your colleague preferential treatment and 'first dibs' on the one suitable post. Either that or they've offered it to her and she's elected to take VR instead, but that seems doubtful from what you've said.

You have 3 choices as I see it. You could go along with what they are doing, make your choice, either take the VR or go forward for selection and see what happens. You could point out the legislation to them, tell them that they should offer the job to your colleague first, effectively making yourself redundant. Or you could point out the legislation to your colleague and leave it up to her to do the leg work.

If you take voluntary redundancy or put yourself forward for selection, you're not really losing anything, you'll either be redundant anyway, or you may get the job. If they later discover after the event due to your colleague challenging the decision that in fact they should have offered her the job, they may well pay her compensation rather than reinstate her so the effect on you may be minimal anyway.

On the other hand, if you don't point this out to anyone, your colleague may lose out on a job that should be allocated to her.

I think it partly depends what you actually want from this. If you don't mind being made redundant and fancy the VR package, you could take that, and then once that's signed sealed and delivered, point out the rule to your colleague and leave the decision up to her.

What do you want for yourself?

tbh I want VR but I know from what another collague has said that the MOS on mat leave wants and needs the job. The other two have opted for selection with one interviewing for an alt post and the other one now wishing he'd taken vr!

This does also effect the pool for the staff below us as there is mat leave involved there too.

Should be getting confirmation of whether I have got VR today so may get a message to the mat leave MOS to ensure she's away of her rights.

thanks Flowery, I know its all about getting the outcome that you want that matters at the end of the day just thought they should be more honest (if they know!) its a difficult time and making these choices is not easy when you've built a career and worked hard and were not even considering leaving so to make the desicion to go for the job only to then be told you've not actually got a choice seems strange.

The direct.gov website is very clear on this issue - presumably most employment lawyers don't use it as a resource then?!

Daisy

Lovebeingamummy hope you get what you want, and if you do, are able to help your colleague if possible.

Ok so an update for you.....I got my VR yippeee.

The MOS on mat leave got the job , another has been successful in another role and the final one has been offered a post below which was orginally pooled seperately.

With regards to above mat leave was not mentioed to him and he was not advised of his score, just that she had been selected.

Well it sounds as if three out of four have done ok, if not four out of four. And it probably wouldn't have made any difference to no 4 whichever way this had been handled. Glad you got what you wanted

That's excellent news LoveBeingaMummy, glad it seems to have worked out so positively

Thanks for your advice and support i hope you knw how much it helps x