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)?

my understanding of the situation comes from teh employment partner at a very big firm. HIs view is that this aspect of Regulation 10 has never been tested in the courts, so it is all about interpretation.

So you can't say definitively that you must be treated a certain way.

the employment tribuals are part of the civil court system so you have to have legal grounds to appeal, not just because you didn't like the outcome. it is unusual and extremely expensive to get beyond the EAT. Awards are a matter of public record.

can I ask a quick question ?

Does the protection conferred by maternity leave operate while you are pregnant but still working?

A friend's company is about to go into redundancy consultations and she is wondering whether it would be worth bringing her mat leave start date forward at all.

Her company is aware that she is pregnant.

no, you have to be on mat leave

As an employment law specialist but not an employment lawyer, I have to say that in this particular situation, I agree with tigerdriver's interpretation. There are no vacancies to offer the woman on maternity leave.

This may be worth a look

www.personneltoday.com/hrspace/forums/additional-maternity-leave-redundancy-situation--3401.aspx

It explicitly explores the issue of whether the remainig posts in this situation are vacancies - and asserts that they are not.

LeninGrad - in that situation I would expect the woman on mat leave to be offered one of the posts. This would be a restructure sitation where vacancies were being filled by applicants.

But the OP's situation is a redundancy pool from which someone is being selected for redundancy leaving the others STILL in their existing posts, on their existing contracts, posts never vacated - headcount just reduced. These posts would never have been empty as the contracts of those employees would not have been ended and restarted so there never would have been a vacancy.

Redundancy and maternity is such a minefield though that I would still imagine it is worth presenting the agrgument in order to frighten the employer with the poss of having to go to tribunal...

Thought I'd sit back on the sidelines for a bit in case it all got a bit bundles at dawn with emplawyer

Lenin - yes, if you're on mat leave or long term sick it is difficult to participate properly in the consultation. A well-advised employer will do what it practically can to include that person. If they were not included then irrespective of Reg 10, there might be a discrimination argument which the employee could use as a bargaining chip (to get the consultation reopened or more likely to get a better severance package). Or there could be DDA issues with the person on long term sick.

Some employers (and IME usually public sector) do treat every redundancy situation as a restructure and ask all the affected employees to reapply for the new posts. In general this is not what an employer would be advised to do in a redundancy scenario UNLESS it was a genuine restructure (if you remember my two scenarios, scenario 1 was a straightforward head count reduction, but scenario 2 was a restructure). Agree with everyone that if it is handled as a restructure then Reg 10 applies and the mat leave employee should be offered a vacancy ahead of anyone else.

In most headcount reduction cases (and at the moment that is happening, obviously, in a lot of businesses) then the employer, possibly in consultation with the affected employees or union (possibly not), will work out some selection criteria and then apply them. And yes, employers do sometimes skew the criteria so that the outcome of the scoring will give the result they want in terms of who to retain. Most employers IME would not skew the actual scoring, though, once the criteria have been settled - that's too easy to challenge.

In these circs, an employee who is pg or on mat leave (or part time or whatever) might be able to argue that the selection criteria are discriminatory and/or that the scoring has been done wrong. Again a well-advised employer will have an appeal process at this stage to try to head off these sort of arguments.

So what I'm trying to say is that there are arguments that someone can use if they feel they've been unfairly treated and these arguments can apply all through the process. They might not succeed with the argument but there might be enough room for debate to prompt the employer into a better deal.

HTH

Can anyone help me understand if I am actually going to be on maternity leave when the redundancy takes place and if I could use the argument that I should have been given one of the jobs still available in my team.
My maternity leave is due to start in two weeks which is probably going to be before I am made redundant but the selection process has started 30 days ago while I had no 'special' rights!? Thanks

just a note to say that I clicked through to the other link on a different site that was mentioned and was fairly horrified to see that most of the advice given was wrong. Two of us in our office have reviewed it and share the same opinion.

In the case of the 'three roles being reduced to two' scenario the fact that it was mentioned that all three were to be scored answers the question - three people are at risk of redundancy and compete for two vacancies. Because one of those three is on maternity leave she jumps the queue even if the other two score higher. This is as long as the job is suitable and vacant which it clearly is and she must be suitable because she has been doing the job. Please also note that the obligation on the company is to offer the role not simply to make the opportunity of applying available.

As for the argument that this area of law has not been tested in court - not true. For example, the current edition of the IDS handbook on Maternity & Parental Rights lists lots of cases. It is true that this area of law does not appear to have been the subject of any reported higher court.

I go back to my original advice - if stuck just concentrate on the wording of the regulation. It's all a tribunal would do.

Note the post that I was referring to that was wrong in many places was on the
www.personneltoday.com website. The lawyer's website mentioned above is correct on the law.

emplawyer.

I have already brought my maternity leave forward and don't think i am able to start it any earlier as i need to give 28 days notice. Is this correct?
Does anyone know if I am considered to be on maternity leave if the consultation process had started and the scoring took place before I went on maternity leave but I went on maternity leave before everything was complete?

Hi

I am very new to how these discussion forums work, but with a possible impending redundancy looming I wanted to type in my question and thoughts.

I too work in an office where 3 managers have to become 2. I am on maternity leave.

I have been told that based on the matrix and points system applied I have come out bottom (which I also cannot understand but that is another argument!), and that the positions in my office will be filled by my 2 colleagues. I am therefore being offered another office which is a 2 hour commute away.

The only suitable job would be the one I am doing, as all offices would involve a 2 hour commute.

So, should I have been offered the job first or is it tough luck as there is no vacancy.

Union think I have an argument but I am not sure.

Very very confused!!

Thanks

After consultation period I was advised by my boss on 7th April (Tues) that matrix had been applied and I had scored lowest. They could however offer me job in other office, which as I say is 2 hours away.

I had an issue with how I could have scored lowest anyway, and therefore boss advised me to put these questions to him in email which I did on the Wednesday 8th, and after a conversation with Union confirmed that I was registering this as a grievance on the Thursday 9th April.

It was only last Tuesday that I came across the Reg10 and following call to Union and Workingfamilies I called and emailed my boss with details of the regulation for them to respond to.

I have not heard ANYTHING from them, and the 10 days from my original 'grievance' expired on Monday.

I dono believe they have yet told the other 2 people that they have the job, so cant understand the delay - Both of these 2 are full times as oppossed to my 0.8 FTE

The wording of reg 10 I find is so vague as to whether there is an available position or not! ie does the matrix scoring now mean that there is no suitable available position.

As I say, there is no other job they could ofer that would be suitable as all would involve a lengthly commute.

emplawyer, my copy of the IDS handbook on Maternity & Parental Rights (which I believe is the latest one, not very new though) does indeed have lots of cases on Reg 10. Ditto plc employment (not so many cases) which I am sure you use. However, they are all about what work is "suitable alternative", not about the definition of vacancy, which of course is the issue here (or at least above). Agree, a Tribunal would read Reg 10 and decide what it thought. I think the normal meaning of "vacancy" (as defined perhaps in the OED) would be a clue.

Tiger

Thank you both

Have re-read thread and more confused than ever as to whether it is termed as vacancy. I am hoping that 'emplawyer' is correct. As this suits

The outcome I want is to go back to work in my existing office and doing same role. The 0.8 shouldnt come into it really as I would work compressed hours if needs be.

Really comes down to whether I can prove the only 'alternative suitable vacancy' is one of those in my office and for which I have apparantly scored least for.

As LeninGrad states earlier they can 'skew' the scoring to get what they want otherwise!

LeninGrad - I quite agree and is the only way I can understand positive legal discrimination can be applied.

It is the route I am going to continue following unless I am advised to contrary.

Trying to find some proven cases on net replicating my situation to help my case - if anyone knows of a good site....??