Been told am 'at risk' of redundancy - advice?

[snhall]

Hi there

I am on OML, due to go back mid May. My boss rang yesterday to say they are restructuring the dept and 12 people inc me have been put at risk. There are 8 new jobs being created that we can apply for.
Its a cr*p time for it to happen. Had just sorted out childcare, and had just this week submitted my flex working request.
I am going to apply for one of the other jobs, because I feel I have to, but my Q is whether I have any cards to hold re asking for it to be done on a Flex working basis? I was fairly/very confident that they couldn't turn down my request on my last/current job (I asked to reduce my hours by 5hrs per week and work half my working week from home. But I think they could argue that the new job (if I get it) has to be full time in the office.
Anyone been in this situation? I feel like they have done it to avoid their stat responsibilities. My old job function largely still exists as far as I can see, its just been moved into a new role. Any help going?

As you are on mat leave then you HAVE to be offered one of the other roles as a priority without going through any of the selection process.

info here

Flowery beanbag who normally posts in the employment issues section is an HR professional so if you post there she might be able to offer further help.

thank you. They have said they want the new structure in place by 1 Sept so I am a bit confused when redundancy actually starts - there is a 30 day consultation period which started yesterday, so 1 May I guess. They didn't tell me I didn't have to apply for thejob - that's interesting. Thanks.

They probably don't know that they have to offer you a job over anyone else. i would make them aware of this asap.

they are very hot on hr (they're a big charity) so i would have thought they would know. i am wondering now if it won't apply to me - if i go back on 18 may maybe that means redundancy doesn't take effect till after i'm back off mat leave. not sure how the dates etc work. ihave ameeting on fri so will try and do some research befopre then. thank you for your help.

If you are due back in a few weeks that extra protection probably won't apply to you. It states that a woman on maternity leave must be offered a suitable alternative role where there is one to start immediately after her existing role is made redundant.

So depending on the timings, it seems probable that you will be back from maternity leave at the crucial point. In fact, if they are hoping to have the new structure in place by September, it seems likely that you will be returning to your normal role, and then going through the application/selection process (which seems very long-drawn-out) along with everyone else. You could alter your return to work date to keep your protection longer but you must give 8 weeks' notice to do this so it's too late.

You state that you feel they are going through this restructuring to avoid their statutory responsibilities. Which responsibilities do you feel they are trying to avoid?

in terms of flexible working, if, as I understand it, you will be doing your normal job for at least a few months following your return, your flexible working application can go ahead as planned based on your current job, if that's what you still want to do. You may feel that you will stand a better chance of successfully obtaining one of the new roles if you remain on your existing hours, so you could elect to withdraw your flexible working application, go back to work on the same terms and conditions and then apply for flexible working once the dust has settled and you have hopefully successfully been appointed to one of the new roles.

In terms of applying for the new jobs on a flexible basis, you can of course do so, but if they feel the job needs to be full time in the office, there's no specific obligation on them to change those hours because one of the applicants works flexibly. If the job is so similar to your existing job, you have (at the time) existing flexible working arrangements in place that are working well and there is no reason that the 'new' job couldn't be done on the same basis, then you obviously have a stronger argument and there might possibly be an issue of discrimination at that point.

thanks fbb, appreciate you taking the time to reply. i am just feeling they haven't handled this in a very fair manner - i am now 7 weeks before i go back to work, so can't apply to extend my mat leave, which seems remarkably convenient timing for them. i am feeling a little like i've been ambushed/stitched up.
i don't think i will withdraw my current flex working request - the new role contains a large element of my old job function, so i hope that might put me in a stronger position to negotiate if they can see it already works, if you see what i mean.
sorry, rambling now...

fbb - i've now been emailed a timeline document which states that interviews for the new posts, and then appointments, or notice of redundancy, will take place the week before i'm due back off mat leave.
is this enough to show that my employer should offer me one of the new posts without me having to go through the selection process? thanks for your help.

Do you know what? I'm not entirely sure.

I'm linking a page describing the rights and including the wording of the legislation, here, see the section on redundancy during maternity leave. I'm not sure whether the right to be offered a new job applies only if the old job is redundant during maternity leave, or if notice of redundancy is given during maternity leave.

I think in the spirit of the legislation then those women on maternity leave who receive notice of redundancy during maternity leave ought to be offered an alternative, but if your employers want to play hardball they might argue that (assuming they are not paying in lieu of notice?) if the employment technically doesn't end until after maternity leave ends then the rules don't apply.

I honestly don't know. I do think it's worth working on the assumption that the regulations apply and writing to them accordingly quoting the legislation though.

Hmmm. That's a tricky one. I'm not sure that the legislation is entirely clear. This is the bit of legislation Flowery linked to:

Redundancy during maternity leave
10. - (1) 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.

(2) 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).

I think I would argue that 10(1) says that the relevant date is when it becomes impractical to continue to employ you on your existing contract, and that that must be (at the latest), when you are given notice rather than when that notice period expires. If you read it the other way and say that it is when notice expires (so you would be back at work and wouldn't have the extra protection) then Regulation 10 (2) - which requires the new job to be offered before the old one runs out -doesn't make any sense.

I would follow Flowery's suggestion and highlight this one to your employer. It may not actually be deliberate that they haven't raised this. I think Flowery would back me up if I say that this rule goes against a lot the normal principles of employment/discrimination law (that you treat people the same, that you don't give preferential treatment, that positive discrimination is illegal) and large numbers of even very large employers are unaware of the rule until they have it happen and someone points it out!

Absolutely, regardless of how hot on HR your employer is, most HR professionals aren't aware of this until it comes up because it goes against normal principles and therefore against instinct. It probably wouldn't occur to them that any group should get preferential treatment. I myself only found out about this when an employee at risk of redundancy took advice and pointed it out to me. My boss at the time was so astonished she went out and purchased a hard copy of the legislation so she could see it in black and white!

They may well be horrified at the thought they might not be complying with a piece of legislation and sort it out pronto.