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)?

Flowery - what you say seems to make loads of sense. But ACAS really shocked me in my case. I assumed they would tell me my case was watertight but they didn't.

My argument was that they could have given me the new role that covered the existing geographical area I already work in. They allocated it to someone else on a point scoring matrix.

I know I haven't been made redundant but when I return in Septmeber I will have to do a 2 hours commute each way with 2 children under the age of 2! ACAS said my best option (if they don't back down) is to pursue a civil case against them for breach of contract ie not reasonable travelling distance or resign and claim constructive dismissal. I can't afford to do the latter as I need my income

LeninGrad - yes, absolutely.

Silkcushion - as I say, I wouldn't use ACAS for stuff like this but it sounds as though your work is arguing that this new role is 'suitable', therefore meaning they have complied with the legislation. Your argument is that it is not suitable, which on the fact of it I would agree with, and that there was a genuinely suitable role which they could have offered you but didn't.

My suggestion would be you try a grievance stating that where possible they are required to offer you a suitable role, and that the role offered isn't suitable given the travelling distance and your personal circumstances. Failure to offer a suitable role where one is available (which you say there is/was) is sex discrimination. It would also be constructive dismissal, but you need to put in a grievance first anyway, and sex discrimination is much stronger, scarier and potentially more expensive for them.

This is mumsnet at its best!

Flowery - I hope you have not, in anyway, been offended by this thread. It is an amazing bit of legislation. I do feel for the other two in my scenario though - both are dads, one with loads of kids and the other with a newborn - isn't it a bit unfair?

M/ifyouinsist - are you convinced?

I'm not at all convinced I'm afraid. Seems like flowerybeanbag is pretty certain but equally since ACAS and a senior employment partner(who didn't even seem to think it was ambiguous) say the opposite I would seriously advise you make sure you have a lawyer who is willing to take your case to tribunal before you present this to your work.

What about finding out the outcome of this thread:

www.mumsnet.com/Talk/employment_issues/658174-Redundancy-while-on-maternity-leave

her employer did not accept Flowery's argument and she has had to go to tribunal.

I have another employment law friend who is head of legal at a v v large british company - would you like me to ask her opinion?

Well will add my pennyworth.

You can of course be made redundant if pg or on mat leave. Otherwise businesses going under couldn't close down. If you are selected for red because of those factors (pg or mat leave) then that is discriminatory and would give rise to a claim.

If your post is redundant anyway (ie, there is a genuine restructure or reduction in numbers, as there are for lots of businesses atm) then if you are on mat leave, you have to be offered any suitable alternative vacancy.

The tricky issue and the debate on one of the other threads is whether there is a vacancy. In my opinion, if there are three roles (let's for argument's sake say they are three identical sales roles) and the company only needs two, then it goes through a selection process, and assuming its criteria are lawful, it will select one person for redundancy. Not three, one. If that person is on mat leave, then they should be offered alternative work if it's there. In this example, unless there was another role somewhere else in the company or group, there is no vacancy. If there is no alternative work, the employee is dismissed for redundancy.

If, however, the company is going to do away with (let's say) three general marketing roles and create a structure of one head of marketing and one marketing assistant, then all the first three roles are redundant. There are two new vacancies. The person on mat leave must be offered one of them provided it's suitable etc etc according to the legislation.

The key issue is: is there a vacancy, that is the key word. In scenario one, there is no vacancy and the employee on mat leave would not be entitled to "bump out" one of the other employees, if she came bottom in the scoring. In scenario two there are two vacancies and she should be offered one of the jobs.

HTH

Lenin - it's not new law at all so yes there should be cases on the point. Often mat/pg redundancy cases, however, are about unfair selection criteria, a sham situation being created, the typical scenario of the mat leave cover being seen by the employer as better at the job than the prospective returner, rather than this issue itself.

I expect tho there are cases dealing with the is it a vacancy question. Can't think of any names this time of night though .

Not very helpful to mix the language like that!

I think the way to think of it is that (1) is the employee actually redundant - ie has her job actually gone. (2) was there any discrimination etc in the selection process - always a good one to look for (3) what vacancies are there? To answer that, you do have to analyse the before and after - ie taking out a post but leaving all the others as is doesn't = a vacancy, but creating a new structure with new jobs would do. I would admit though that it's not always easy to work out which side of the line the restructure/reorg falls, and employers don't always think it through too hard either.

I agree tigerdriver - for the argument that there is a vacancy to hold you would need to say that a restructure is taking place. Perhaps you can do this?

BUT - from a common sense point of view I do see where you are coming from - as you are entitled to +ve discrimination for any alternative vacancy in the organisation then why not your existing role?!

I just don't think the law actually says that.

-3 employees doing the same job all at risk of redundancy
-2 jobs available
-Selection process will decide who gets the two jobs and which one of the three will end up being made redundant as a result.

Seems clear to me that when a decision needs to be made about who gets a job that is available going forward, and who gets made redundant, the woman on maternity leave gets preference. The legislation isn't only about a different job that might be available elsewhere, it doesn't specify anywhere that it only applies to new vacancies or jobs elsewhere in the organisation, it's about a suitable job that is available.

These jobs are available to this employee at this point. They will only become unavailable if, instead of giving the woman on maternity leave preference as the legislation states she must be, standard selection criteria is applied and she happens to lose out. At that point they will become unavailable because they will have been given to someone else instead. But they could have been given to her, they were available to be given to her. If they become unavailable to her it will be because a decision was made at the crucial point not to do so, not to give her preference.

Not offended by this thread, no. Of course no one knows me here from Adam so I suppose no one has any reason to believe I even know what I am talking about, let alone anything about my professionalism or anything like that.

If it helps, in similar situations on here and in RL, my advice to employees to point out this legislation has led to redundancy decisions being overturned and employers backing down having taken legal advice themselves.

I'm off this thread now!

I am not qualified in any way, but I think that the issue here is about the roles versus people.

At the moment, it seems that some think that each of the roles is occupied by an individual. However, for the purposes of the redundancy selection, the roles have become vacant, and there are three candidates for two roles.

The options are:

Roles 1&2: Person A&Person B; Person C redundant.
Roles 1&2: Person B&Person C; Person A redundant.
Roles 1&2: Person A&Person C; Person B redundant.

For each of these options, there are two roles available. Therefore, the person on Mat leave automatically qualifies for one of them, leaving the others to fight it out for the last spot.

Yes, Leningrad. I think the only way it could be interpreted differently is if one specific role was going, so the other roles were occupied by persons A & B. Not the case here.

Some wrong advice being given here. I am an employment lawyer with 20 years experience. The advice given earlier by tigerdriver that said ""In scenario one, there is no vacancy and the employee on mat leave would not be entitled to "bump out" one of the other employees, if she came bottom in the scoring". is wrong.

To recap tigerdriver said :

In my opinion, if there are three roles and the company only needs two, then it goes through a selection process, and assuming its criteria are lawful, it will select one person for redundancy. Not three, one. If that person is on mat leave, then they should be offered alternative work if it's there. In this example, unless there was another role somewhere else in the company or group, there is no vacancy. If there is no alternative work, the employee is dismissed for redundancy.

actually in that scenario if I read it right there are three sales people and one needs to go. Assuming that the woman on maternity leave is one of the three sales people she is entitled to be offered one of the two remaining jobs if she would otherwise be dismissed as redundant during her ML. A tribunal would have no doubt about that. The question of her coming last in any scoring is irrelevant as she is entitled to jump the queue for the job and not have to be scored.

By way of example, I represented a woman a few years ago. She was the only person doing her role in her department. During ML the company had two people doing the role. It then decided to move back to one person. It made her apply for the job and be interviewed. She refused. It sacked her. We won - easily.

If anyone is stuck on this area of law it is worth just reading regulation Regulation 10 of the Maternity and Parental Leave Regulations 1999. Other posters have correctly drawn attention to this regulation and this should be the starting point and probably the end point of your argument. That regulation states that where a suitable available vacancy exists the employee is entitled to be offered that role under a new contract of employment. That new contract of employment must, according to the law, be such that 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.

There is very little caselaw on this subject because most of the cases start and finish in an employment tribunal and therefore don't go up to the higher courts where they might be reported in law reports.

Common sense dictates that there must be some subjective judgement as to the word 'suitable'. I think the regulation must be read as " if there is a job that is in any wide sense 'available' and in a wide sense is suitable in relation to the employee then she is entitled to be offered it and in this regard suitable must be read as both being a consideration of whether the work is suitable for her and whether she is broadly suitable for the work. Consideration of whether there are other more suitable candidates shouldn't come into it as it is the woman's suitabity and the availablity of the job that are in issue.

Hope this helps.

That's really helpful emplawyer - thanks for your input and all the best to those potentially affected

Re question about where you can find judgements : you can read employment law cases on the bailii website but this covers all cases so you would have to know what you are looking for. Also check out the Employment Appeal Tribunal website

www.employmentappeals.gov.uk/Judgments/judgments.htm

for a summary of his area of law you can check out a number of law firms websites. Typing 'pregnancy' 'redundancy' and the word 'chelsea' is a good start.

Re WRT the case you won, was the claim for unfair dismissal and sex discrimination? How big was the award (roughly?)

the answers are 'yes' and 'I can't say'.

Best wishes

Well, emplawyer, we will have to agree to differ on this. Your credentials are duly noted.

Please note that I am not giving any advice here, that would not be possible in this context and I wouldn't assert any right to do so. However, in a hypothetical situation....

I still maintain that the issue here is whether there is a vacancy and in my scenario 1 there just isn't one. There's a reduced requirement for employees to carry out work of a particular kind and hence a redundancy situation. There aren't three old jobs going and two new ones being created. If that was the case of course the mat leave employee would be entitled to the role as of right assuming it was suitable etc etc as per the legislation. But that isn't the scenario I was describing.

What I would suggest to anyone who is in this situation and depending on what they want (they might not actually want the job, they might want the red package possibly) is make a big fuss, and cite this argument. IME getting the deal you want isn't always (often?) about who is legally right, but about who is prepared to pay out to stop the argument going further/having the hassle of a claim etc.