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)?

I know there has been a lot of disagreement about this "vacancy" issue on this thread but just be aware that nowhere have I been able to find the headcount reduction you are describing as selecting "candidates for posts".The assumption that these roles are "vacancies" assumes that in a redundancy pool where selection criteria are being applied they are being applied to select canditates for vacant posts. This is not what it says anywhere but on mumsnet and I have looked and looked and looked!

ALL the legal info and guidlines talk about being selected for redundancy. And specifically that Regulation 10 kicks in AFTER a woman has been selected for redundancy based on acceptable criteria.

Nor have I seen any trbunal decision that supports the argument that these are vacancies - would love it if there was one!

I know Flowery and emplawyer say that they have used this argument with success but remember that companies MAY have backed down when shown this reg for slightly different reasons - if there were real alternative vacancies for eg they might decide that it would be better to put the woman in their existing post than some less appropriate post. Or they might just want to avoid a tribunal situation when maternity is such a contentious issue. Or they might not have wanted to make the woman in mat leave pregnant anyway and so the Regulation suited them!

Just be aware that although there is a lot of good advice on mumsnet and strong opinions on here I have also been given the opposite advice from a senior employment partner at a large city law firm and the senior in house employment lawyer for a large british company (in charge of employment law for 45,000 employees).

I can't say which one is right but perhaps it is not as clear cut as we would like...and every situation is different.

Littlenutter - positive discrimination would be applied because once a woman had been made redundant if there was an alternative vacancy going she would have to be offered it first rergardless of any better qualified canditates - ie she would not have to compete for it.

Best of luck.

Oh - except if it is a restructure involving redundancies as opposed to a plain redundancy situation - in a restructure as I understand it people can be asked to apply for their posts rather than being selected for redundancy.

so..... I looked at one of the links you posted earlier www.employment-law-expert.co.uk in this thread LeninGrad, and emailed them to find out their views, response from them as follows - think it is fair to say matrix/points system needs to be queried for all people this is affecting:

The law is clearly stated in the Maternity and Parental Leave etc Regulations 1999, Reg.10, which is that if an employee's job becomes redundant while the employee in question is absent from work on maternity leave and the employer has a suitable available job for the employee, the employer must offer it to the employee in preference to any other employee who is similarly affected by the redundancy.

What your employer would assert, of course, is that the vacancy is not suitable for you because you scored the lowest. You will need to ascertain whether the scoring criteria was objective being based on ,say, performance appraisals, attendances, sickness absences, skills and abilities, educational and technical qualifications and so on. (Or whether it was based on the subjective opinion of a senior manager not backed up by objective evidence.)

The alternative job offer may well not be suitable because it would impinge on your childcare responsibilities as a new mother. In the circumstances, to avoid a claim of sex discrimination, your employer might like to consider transferring a male colleague of yours to the alternative suitable job so that you can remain in your present job.

Whenever an employer proposes to make an employee who is away from work on maternity leave or is a new mother redundant, alarm bells start to ring and there is a need to establish whether a genuine redundancy situation has arisen and, if it has, whether the female employee has been unfairly selected for redundancy. Have you also read pages 22/23 of my heading Redundancy? (As well as pages 10/11 of Maternity Rights?)

Surely that can't be right!?

Suitable is defined by all the sources I've seen as being at the right level, right salary, uses your skills. etc.

Your source says of a vacancy "the employer must offer it to the employee in preference to any other employee who is similarly affected by the redundancy."

AND THEN

"What your employer would assert, of course, is that the vacancy is not suitable for you because you scored the lowest."

This is a complete contradiction and surely most employers would see they couldn't get away with this.

The whole point about Reg 10 is that you are offered the vacancy EVEN if there are others better qualified. You are positively discriminated against in being selected for the vacancy.

So I still believe that your employer woould simply argue that there is no vacancy in your current role. It will say it has offered you a suitable vacancy - though arguably a 2 hour commute makes it unsuitable.

But are there any other vacancies for you that you would prefer? If not, I think employer might say it had done all it needed to under Regulation 10.

Hi 'Ifyouinsist' sorry have not come back until now - you may have left this thread completely!

can I ask a question. You mention re structure. Is that because you think you have more of a chance of using reg 10 if restructre happening to company. As you say, then you have to reapply for your job.

Intrigued because I have found that wording in some of the documentation provided to me by company.

In answer to your q. no other vacancies I would prefer, or can do without taking massive pay cut!

Well, I would have thought that you would have a better argument that your existing job is a "suitable available vacancy" if a restructure is happening and therefore people are being asked to apply for jobs -which therefore are presumably "vacant".

As opposed to if you have been selected for redundancy in a headcount reduction - leaving the other employees still in their jobs and therefore the jobs "occupied" rather than vacant.

Have you heard anything back from your employers?

Can the union help further?

I would call ACAS and CAB as well. You really need to get advice from someone who can look into the specifics of your situation.

Sorry - meant to post under "If you insist" name!

Kitsilano - name changing is really rubbish isn't it? The real reason I dont post more on this topic is that I post a lot on other stuff and somehow the two don't meet up and I don't want them to and I can't do this name change business.

Whatever your situation is, ladies, it's always worth arguing the toss. You can see from this thread that long standing senior employment lawyers can have v significant differences of opinion. Push your case for what you want. IME, and that is a lot of E, if you don't ask, you don't get. You could ask and not get, of course but nothing ventured, nothing gained. and also remember, ladies, that most employers are terrified but terrified of anything that smacks of maternity rights.

This is really over and out

I have now been made red on the last day before my mat leave starts! Even though my role is now rudandant I will have to work my notice period when I come back from my mat leave?! (I've never heard of this before, this could be any time, whenever I give notice that I am coming back from mat leave). I think by doing this they are avoiding to make me red while on mleave.
This doesn't sound right to me, does anyone have any thoughts?
Thank you!

tigerdriver the new IDS maternity and paternity handbook is now out. It is dated April 2009 and was posted out last week. I agree that until this arrived we were working on the 2003 edition as this was the last one. Lots more cases on this subject in the new handbook. Re vacancy controversy - what about all those cases on s188 TULRC (collective consultation) lots of employers argued that they did not intend to make more than 20 (or more than 100) redundancies because they fully expected some to be found alternative jobs. Tribunals have consistently found that the total number at risk should be counted even though some or even most are expected to be found alternative jobs. I really don't think that there is an argument about the fact that when 3 become 2 there are three potentially at risk of redundancy and 2 vacancies. I'll see if I can find some authority for this so that this part of the forum can gain clarity.

Best wishes

Hello emplawyer

Must look out for the IDS - we will get it, I expect, but our librarian had stuck a big sticker on the old one because of its age.

Yes, of course I agree with you re s188 but that's a completely different bit of legislation - and the issue there is what constitutes a "dismissal" and we all know about the change of ts and cs cases and "comtemplating" dismissals (sorry, this isn't helpful to the rest of this thread, just me showing off late at night).

I have spent a great deal more time than I really should have trying to find case law on the 3 into 2 issue. And I just can't find anything that takes the argument further either way. If I were clearly wrong I would concede (un)gracefully. But I would concede and brief my team on this point which comes up quite a lot from the employer side. As it is, it's a surprisingly open question. (Maybe not that open, think of any question you are asked on TUPE - how often do you start your answer with "well, on the one hand...."?)

But you and I both know that being right, and getting the deal, are two different issues - it's all about the argument and risk and publicity and etc etc.

Night, have a nice rest of Bank Holiday.

From what I understand, a few of you on here are using my experience as a test-case (www.mumsnet.com/Talk/employment_issues/658174-Redundancy-while-on-maternity-leave).

I just thought I'd update you - my solicitor has decided that my employer's interpretation of role not equalling a vacancy is correct (or at least, doesn't want to rest the case on that). So the main thrust of the argument for unfair dismissal / sexual discrimination is due to unfair scoring, due to the fact that they scored me against other people when I was pregnant and they were not, and there is a strong argument that had I not been pregnant and on maternity leave (i.e. not suffering from nausea, constant headaches, discomfort, fatigue, and then not being there for the best part of a year) I would have been scored much better, and it is likely that I would have retained my position. There are also additional arguments that due to me being on maternity leave when the redundancy consultation was taking place, I was not included in the process as much as my other colleagues were, and was thus disadvantaged.

ANyway, I am a little nervous about the whole thing, because the solicitor's fees for the court appearance will probably be in the region of three thousand pounds (sorry can't find my pound sign on this American keyboard), and my anticipated reward for the combination of loss of earnings and emotional distress won't be significantly higher than that.

I've just seen a list of the documents my ex-employer is submitting as part of the tribunal, and it includes all my sick notes, a copy of an email I sent to my top manager when I had a problem with my line manager (who was bullying me), short notice holiday requests etc etc. I can't say it's not making me feel nervous, because I don't have anything to countermand it, and doesn't exactly show me up to be a model employee (although most of it couldn't be considered my "fault", such as sick leave due to having my gall bladder removed etc).

My court date is the 29th May, so fingers crossed everything will be OK.

To all those going through the same situation - I really feel for you. Just keep records of EVERYTHING, and try and stay focussed on it. It cost me 250 pounds to get my solicitor to fill in the ET1 tribunal form, and it was money well spent, as it was written far better than I could have done myself, so I'd recommend getting a good solicitor on board asap, even if it will cost money. Hopefully, most companies will settle out of court before it gets to a tribunal - mine's just stubborn.

Best of luck to all.

Thanks for updating Naetha - I suspected your experience might help to bring some clarity to this issue.

Best of luck with your appeal.

The award is composed of a loss of earnings element (from which your redundancy severance is deducted) and a token reward (usually between £500 and £5000) for emotional distress / injury to feelings due to sexual discrimination.

i clarified this with my employement lawyers last week on behalf of MN. their interpretation is that until the initial selection has been done and the woman is at risk of redundancy, then reg 10 doesn't apply, so it doesn't apply until after the initial selection process and the individual is displaced. She said this hasn't been tested in law, so it is just their interpretation, but they are a very big law firm.

I agree with smittenkitten and tiger regulation 10 is not engaged until the redundancy situation has arisen. The purpose behind the law is protect women who are out of the workplace on maternity leave when the redundancy situation arises and in effect to positively discriminate in their favour vis a vis any suitable alternative vacancies. Regulation 10 does not protect a woman on maternity leave from being made redundant, however the selection process must be fair.

Hi!

Really hope someone can help me. I have read a lot of information around mums being on maternity leave and being made redundant. I understand that any roles that come up at similar pay/benefits, must be provided to the individual on maternity leave.

I also understand that scoring systems to select those who are made redundant and those who remain shoudl not apply to those on maternity leave, on the basis that it is a selection process, and someone on maternity leave should automatically receive preference for the job.

I'm getting there I promse.... So, what happens if you are just about to go on maternity in August, and they then announce team restructure and pool of 14 people are scored to decide who stays. Because I am not yet on matnerity leave, does that mean that they could decide not to give me a role in the new structure?

I'm so stressed about this as although I can't wait to be a mum, mu job has been my life up to now and I'm finding it so difficult to relax when I should be trying to chill out for sake of baby!

Anyone got any advice? Kind regards xxx

Hi - I would be so grateful if someone could give me some advice as to my impending redundancy situation.

I am currently pregnant and due to go on maternity leave in November. I am employed by a large multinational company which has decided to reduce the team in which i work by 50%. All similar regional roles are going to go and instead there will now be one global role.

I am currently employed in the global role and have been in a selection process with 3 other people doing the similar roles on a regional basis. Our roles were matched against the new role profile and if they were considered to be a 70% or greater match then no interview was needed. I have now been told that both myself and one other person are more than a 70% match and we both need to interview to decide who will get the new global role.

Now my concern is that before i told my employer i was pregnant i was assured at least three times (unfortunately this was verbally so no proof) that the role was effectively mine and the other candidates were not suitable. However my boss has become a lot more distant and colder since telling them i was pregnant. The first reaction was 'You do realise the new role is managing people - how do you think you will cope?"

Bearing in mind i already have one child, work 10 hour days full time, have not had a sick day since i have had the role and my husband looks after my son fulltime in the week I thought there was no way this question would be asked to a man whose wife was pregnant and stayed at home to look after the children.

Because of this, what i was told before and the change in attitude towards me i am now certain that the decision to interview me as opposed to a direct appointment is because of my pregnancy.

The person i need to interview against is doing a regional role as oppsoed to my global role. This person's role (and i known them well so am familiar with what it is they do) is nowhere near a 70% match (indeed 50% of their role is something totally unrelated) so I have no idea how my employer has decided they are more than a 70% match). I am certain this situation has arisen because i am pregnant as I am positive that i would have been given the role without question if i had not been pregnant.

I think the problem is that my boss will have a drastically reduced team and with my being on maternity leave for a year will struggle to cope hence the change in opinion and the reason the interview situation has arisen.

Sorry to ramble but what rights do i have? As i understand it i cannot invoke article 10 as i am not actually on maternity leave yet (although i will be should i be chosen for redundancy as the maternity leave would start before i reach the end of my notice period.

Am i right in thinking that they will then be obligated to offer me a suitable alternative job? My fear is that my current job which i am going to be interviewed for is the most suitable as its my current role and i am professionally qualified to do it. 95% of other roles in my area require a totally different skillset and i would not really be qualified to do them.

Is there anything i can do? Any help would be much appreciated as i am getting so stressed about everything. I also loathe interviews and am unlikely to do as well as the other interviewee who can talk the talk a lot better than me! I am confident in my skills and experience but less confident in portarying them in an interview situation.

Thanks so much.
confusedmum2be