Clarity on redundancy while on maternity leave

[letshaveaheateddebate]

I am a regular posted but have changed my name so I can out myself to a friend and fellow MNetter.

I am on additional maternity leave. There are 3 of us at the same level in my company and 1 of us will be made redundant in 30days. We have been given the selection criteria.

I have understood that, in these circumstances I CAN NOT be made involuntarily redundant. I have understood this from MN, there are many threads on this in this topic.

HOWEVER my friend (Hi M!!!) has done her own digging on this (including very kindly tapping up an employment lawyer) who has said:
"Selection criteria should be applied to all three in the same way. The one that scores lowest will be at risk of redundancy. This could be the one on maternity leave. If so, she will be in a better position than any others at risk who are not on maternity leave as she is entitled to be offered a suitable alternative vacancy, where one is available, before it is offered to any other employee. The two remaining jobs are not suitable alternative vacancies as they would have been filled by the other two employees".

Can anyone add anything to give absolute MN clarity on this (not just for me but all the other MNetters who are likely to face this problem before too long)?

Don't get me wrong - I sooo want Flowerybeanbag's advice to be spot on (she does a sterling job helping loads of people on here) - it's just that every time I try to explain it, it sounds incredulous that a woman on ML can just claim her right to one of the remaining positions. Flowery - please give us the ammunition we need! Thanks!

Hi G!

I think the issue is the understanding of the fact that in a redundancy situation(according to Reg 10 of the Maternity and Parental Leave Regulations) a woman on maternity leave must be offered first choice of any suitable alternative vancancy.

?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).

(3) 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.?

G's (and I presume Flowerybeanbag's) argument is that the 2 remaining roles in her department count as suitable vacancies and therefor G must be offered one of them.

However I believe that these are not vancancies as the posts are filled. The redundancy pool criteria are about selecting who is made redundant not selecting candidates for 2 vacancies.

The law also states
www.direct.gov.uk/en/Employment/RedundancyAndLeavingYourJob/DG_10029832

that when a pool is created from which redundancies will be selected it is discriminatory if the selection criteria include anything to do with being on maternity. This means an employee on maternity CAN be selected for redundancy from a redundancy pool based on other acceptable criteria (eg performance compared to her colleaug. If it were the case that a woman on matternity leave should automatically be excluded from the pool why would the point about maternity leave being an unfair selection criteria be made? It would be irrelevant.

Just to add I would be delighted on my friend's behalf if Flowerybeanbag/LeninGrad are right but I don't think it looks like they are unfortunately

But if 1 person in 3 is to be made redundant the remaining 2 posts are not vacant! They are held by those who are not made redundant.

Different if the redundancy situation works by making all 3 redundant and then getting them to apply for 2 posts - but that isn't the case here.

1 person out of 3 is to be made redundant based on criteria that are to be made clear. And as long as "being on mat leave" isn't one of those criteria then my friend can be made redundant.

THEN reg 10 kicks in and she is first in line for any alternative vacancy in the organisation.

Hi LeninGrad and Ifyouinsist(M!)
Yep - LeninGrad that hits the nail on the head.

Are the two remaining posts "vacancies" or not?

I say - yes they are - 3 posts currently exist (it just happens that one of them is currently filled by a person on ML). 2 posts will exist - but it is not correct to say they are filled by the two others not on ML.

Letshave

I work for a bank and have just gone through the consultation period for my job. I'm 33 weeks pg and not yet on ML. I have been successful but offered a job with ridiculous amounts of travelling that the company considers to be suitable.

I have informally complained and asked them to reconsider a role closer to home. My new boss said that if I formally challenged the new area I've been given then I might be made redundant if they agreed the travel was too far.

I spoke to ACAS about the whole situation last week. They confirmed I can be made redundant now and whilst on ML. Similar situation to yours ie 10 people - 8 jobs. ACAS said if I was made redundant then I would have preference for suitable alternative roles during my 3 month notice period.

So why does the law state that criteria for selection for redundancy from a pool musn't include being on mat leave? If it's not legal to select the person on mat leave at all then this would be irrelevant.

This rule is stated on ALL guides to redundancy but nowhere does it say that in a redundancy pool the woman on mat leave MUST be excluded. (Except on here!)

Leningrad - yes I found that too but I still don't think it proves that G's existing role is a vacancy - it talks about an ALTERNATIVE vacancy

I think there are also differences in how you are treated based on whether you are on ordinary maternity leave or additional maternity leave. You have more rights and protection if on OML.

Leningrad - but once you are selected based on being at the bottom of the pool through objective non-discriminatory criteria then by definition the other roles are not vacant - they are filled by those who scored higher than you and so are not available.

I think silk cushion's experience may unfortunately be the one to look at as she has been through it and advised by ACAS.

If you were to go to your employer and say you couldn't be made redundant it would be sensible to try to find a case in law that backs you up since the rules alone are not (I think) to make the case beyond doubt.

sorry - enough to make the case

I'm slightly tickled by the fact that people might think I go around giving legal advice based on my own, non-lawyerly interpretation or 'argument'! When I give advice, in the event that there is room for interpretation, or I am not sure, or it's one of those areas up for debate in the tribunals to be decided by case law, I say so, it would be incredibly unprofessional and irresponsible of me not to do so.

In the case of this particular piece of legislation, I would certainly not dream of giving advice as fact without having checked it first, a lot. A Lot. Anyone who is in a position to be able to read legislation and interpret it may of course disagree, but anyone doing so isn't disagreeing with my personal opinion or 'argument', they are disagreeing with several different, very senior and experienced employment lawyers. Which of course anyone is free to do, but I would like to make it clear that is the case.

It seems that in the situation given, there are currently 3 posts. 3 people are at risk of redundancy, because in the altered structure going forward, the number of posts will be reduced from 3 to 2. The question is how should it be decided who gets those 2 posts out of the 3 individuals concerned.

The legislation states that a woman on ML can be made redundant (some think it is literally not possible), however where there is suitable work available, she must be offered it as a priority, not be made to compete for it with others.

In the situation outlined below, there is suitable work available. Two posts are available, in fact, available to three individuals, and both of the posts are suitable for this person. The only way they wouldn't be available is if the decision was given to allocate them to someone else instead of her. At the moment there are two posts available for three people, one of them should be allocated to the individual on ML, the other individuals should have appropriate selection criteria applied in order to decide who gets the other one.

If there is another suitable role elsewhere in the organisation, offering the woman that instead of one of these two roles would probably be enough to comply with the legislation, but choosing to make her redundant when she could have been kept on in a suitable role would not comply.

The fact that maternity leave can't be a factor in the selection of someone for redundancy doesn't negate or conflict with this. Redundancy isn't always about people doing the same job competing for a reduced number of posts, sometimes it's just one person, or sometimes a whole office or team. If someone's post is made redundant while they are on maternity leave, the fact that they are on maternity leave can't be all or partly the reason for that.

Oh, and what kind of ML it is is irrelevant, protection from sex discrimination would be the same throughout.

Oh, and I don't know enough about silkcushion's situation to comment, but I would strongly advise against taking ACAS as gospel, the number of times I have seen them give shockingly bad, inaccurate or out of date advice is scary. They are great for some things, but involved knowledge of sex discrimination legislation and case law isn't one of them.