redundancy at end of maternity leave

[Janeybobs]

My employer started a redundancy consultation period, due to restructuring, a month before I was due to return to work after 52wks mat leave. The consultation finished two days after my return date and final announcements were made 2wks after that. It was confirmed my role did not have a part in the new structure and that I continued to be at risk of redundancy. My employer is claiming that as the announcement came after my return to work date they do not have the enhanced maternity responsibility to me of offering me a suitable alternative position on the same terms and conditions. I wasn't actually back at work as I had immediately started a period of leave from that accrued whilst on mat leave. Are they right are they excused from this responsibility due to the timings?

What they have actually done is pass elements of my old role to others to free up time for extensive international travel in the new role, which they know I can't commit to. My single, childless maternity cover got this new role.

There are other issues going on in that they turned down a flexible working request I filed before the redundo announcement on the basis of the structural changes coming in when they were still at the proposed stage during the consultation period. I appealed and was turned down at appeal and have now filed a formal grievance and am waiting for the results of an internal hearing I attended last week.

I have also had a grievance against my boss re inappropriate derogatory comments he made to me whilst preggers.

I have to go in on Tues for what I think is going to be formal issue of redundo. Any tips greatly appreciated.

I suggest that you go to Citzen's advice bureau and discuss your situation. I am pretty certain that they are skating on thin ice making you redunant within three months of you returning from maternity leave.

www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=1080903562

It sounds like your employer could be making a very expensive mistake.

You have my sympathies. I have just had to fight tooth and nail to get my old job back.

You want to take your employer to an employment tribunal then you have to watch time limits. I think the deadline is 3 months less a day from when you started having problems.

Many thanks for the link, I have scoured this site extensively. What makes you say 'within three months of you returning' - is this a legal thing or you thinking it is dodgy? I think it is well dodgy but I can't find any legal obligations upon return from mat leave, even if it is your first / second day back. I have spoken to ACAS who said I would have to argue the timings are deliberate i.e. they waited until I was back - however, the first time I spoke to ACAS they told me I was fine as it all started whilst I was on mat leave so inconsistency there.

The deadline is 3mths from the date of your last paid day at work if I pursue unfair dismissal with sexual discrimination for the redundo. For the illegal treatment of the flexible working request it will be 3mths from their final word, which will be the result of the grievance hearing so I am fine on both counts but grateful for the reminder that the clock ticks v. quickly on such matters.

The extra protection refers to when an employee's position is made redundant during maternity leave. You haven't been made redundant yet and are back from maternity leave, so technically they are not required to comply with the obligation to offer you a suitable alternative role in preference to other employees. Once you're back from maternity leave you are back, so the only protection you then have is if you feel you have been made redundant because you were on maternity leave, which would be discrimination.

Do you think there is a suitable role they could have offered you but didn't? You say they 'know' you wouldn't be able to commit to the international travel in the new role, but was this role discussed with you? Were you able to apply for it or be considered for it? Were you involved in the consultation process and able to give feedback on the proposals affecting your role?

The first person you spoke to at ACAS was right, you'd have to make the argument that they delayed things unnecessarily to avoid you being on maternity leave at the time and to get out of the extra responsibilities to offer you a role. Do you feel that's the case?

I actually think it's fine not to agree a flexible working request when there is a restructuring going on and they are still in consultation. If they don't even know what (if any) job you will be doing after the restructuring, it's difficult to properly consider any flexible working request. I would have advised them to delay it rather than turn it straight down though.

I am not a legal expert. I suggest you go to CAB or you can get a free first half an hour with a solitor. It is also worth checking your house insurance to see if legal expenses are covered.

Flexible working is a bit of a minefield. They do not have to grant a flexible working request, but they do have to follow set proceedure.

"will be 3mths from their final word, which will be the result of the grievance hearing "

No it is from the date of the appeal letter. You have a grievence in motion and that is enough. You can always withdraw the ET1 if things are resolved. I would be surprised if you want to work for them after everything that has happened.

Your employer might completely ignore your grievence and refuse to have a meeting.

With reorganisation they have to show that you have not been at a disadvantage to other employees with lack of information.

I am IT technician, not a legal person.

Hi Flowerybeanbag

I don't think they can have it both ways i.e. say I was back from mat leave when the final decision was made but then refuse my flexible working request when I was still on mat leave due to restructuring as it was only in consultation and wasn't definite at that stage. They tried to turn down the request due to 'planned structural changes' which is a legitimate business reason on the gov website but unfortunately the changes were only proposed at that stage and not planned - any good barrister would wipe the floor with them on that one. Nor did they explain how the business reason they had used applied - this is another legal requirement they have to do. At the appeal, still during the consultation phase they changed their reasoning to 'proposed changes' but this is not a legitimate reason and again failed to explain how it applied. I also said I wanted the appeal to be considered in light of the fact that I was going to have to work a 3mth notice period in my position and wanted it considered for this only. Also the manager they pulled in to hear it was someone heavily involved in the drawing up of the restructure plans.

I did talk to them re the new job and there was no budging on the travel element. The travel is to bring in new business but they refuse to show me the economic rationale behind this. Technically, I could have applied but in reality I could not take the job as I could not commit to this travel - how can I take a job and then immediately not be able to do what they want? There was one other job at my grade, which was much more office / home based and I did submit an application for but was forced to withdraw as again they refused to allow me my current two days a week working at home.

Reallytired - my home insurance does cover legal expenses but only once I have finally been issued with my redundancy notice. As I say above they have seriously stuffed up on the flexible working request procedure. They have heard my grievance and I appreciate your comment the date is from the appeal letter. I was massively out of the loop being on mat leave.

They have behaved v. badly and they know it. I have been there 15yrs and this is my 3rd period of mat leave - no problems before but now new boss different attitude to working mums etc.

Oh I am ranting and have been for over 2mths now as this has all been dragging on and on .... However, I am prepared to fight this all the way.

Not sure how that would be having it both ways. You were back from maternity leave when the final decision was made (unless you think it was privately made much earlier). There were changes planned to the structure when your flexible working request was made. The final details weren't agreed, but I don't think the fact that the details of the changes had been proposed but not yet finalised detracts from anything. They did plan to make changes.

Yes they have to state how the business reason they have given applies, you are right there, and a tribunal would make them put that right and explain more fully.

What's wrong with the manager hearing your request being involved with the restructuring plans?

I'm not saying they have behaved well, and obviously you know more of the ins and outs, and additional details like the derogatory comments. But just on that one point I think rejecting a flexible working request because the structure of the organisation/department will be changing and the details are still up in the air is perfectly valid tbh.

You may well have a discrimination claim, I don't know, and I think it would be beneficial to discuss the whole picture with someone, if you have legal cover for example.

It is hell what you are going through and worth talking to CAB. I found they were excellent.

If money is a problem you can get a no win no fee lawyer, but bare in mind that you will have to pay back the expenses at some point. Employment tribunals do not award costs.

It sounds like you have a strong case. You also have grounds on variation of contract. They have to offer you a job that is suitable for you. They cannot radically change your terms and conditions.

Have you taken additional maternity leave or just ordinary maternity leave?

Erm, I'm sorry, but I agree with Flowery. If you are back from maternity leave, you are back. You think that this means that your employer is having it both ways, in fact I would say it is being internally consistent.

They are saying 1. No final decisions had been made about the restructuring at the point you finish maternity leave; and 2. That until those decisions have been made, they are not in a position to deal with flexible working (although I agree they should have postponed, not refused).

What do you mean about refusing to show the economic rationale for travel? If they believe that travel and pitching for work in person is necessary then they are entitled to believe this. If you can show ways that the job could be done just as well without the travel then that might feed into indirect sex discrimination, but they don't need to get into really nitty gritty figures necessarily.

It sounds from the OP that you are pretty sure they have restructured in bad faith. In which case that could be grounds for claiming discrimation (imo only - I'm not a lawyer!)

The OP needs legal advice on this. The OP has nothing to lose by taking their former employer to an employment tribunal. She is only liable for her own expenses.

ReallyTired - I agree that she needs advice, but I would strongly disagree that there's nothing to lose in a tribunal.

Yes, you are normally only liable for your own costs (although costs can be awarded against you if you behave unreasonably in the conduct of the litigation).

BUT

A tribunal is a massive investment in time and emotions. Sex discrimination cases can easily take 6-12 months to resolve and could be a week in 'court'.

I take your point, but it's not 'nothing to lose'. It's extremely emotionally and mentally draining and can be distressing, so you need to weigh up the options with a professional if at all possible.

The OP has already lost a lot. She is deeply hurt and has been made redundant at difficult time in her life to find another job.

An employment tribunal is not about making money, its about compensating for loss. Hopefully the OP would be able to get a good settlement out of court.

Was the OP the only person to be made redundant?

Not denying that at all Reallytired. She has lost a lot. I was just responding to the comment about 'nothing to lose', because I think people need to appreciate the realities of going into a claim upfront. It can come as a horrible shock otherwise and it's something to weigh in the balance.

As an aside, Janeyobs - There are no set rules about redundancies within a given time after return from maternity leave. There's nothing that says that you can't be made redundant within 3 months or that there are different rules. I think that ReallyTired was getting at the fact that, if you are selected for redundancy soon after returning from maternity leave, it looks more likely that the selection was somehow related to that leave. Obviously if it happens a year later, it's much harder to convince a tribunal that the two were linked.

You talked about 'announcements' on the redundancies. I assumed that that meant you were not the only person dismissed. ReallyTired has pointed out that you didn't directly say. What's the position?

Janeybobs,

There are two groups who can give you free initial advice, ACAS and Citizens Advice. Ask both, since one may have a shorter waiting list than the other.

You've got legal insurance so you're covered. However you need to show that there is a valid claim, so collect every piece of info you can.

Assume you are collecting proof for a tribunal. Print off every email now before you lose access to the email system. Ask for every decision in writing. Ask for the criteria used for redundancy selection. Ask for their reaction to flexible working in writing if you do not already have it. All emails have times & dates on so will prove the timescales.

Write out a list of everything that happened including every detail of conversations you can remember, with dates. Did your employer publish a new organisation chart? If so, when? Print off a copy.

Take a witness with you to your meeting. It can be a work colleague or a union rep. If a work colleague, choose someone who is not easily bullied.

If the worst happens, send all the info you have collected to the insurance company. They have a solicitor who makes an initial assessment and then allocates you a solicitor if they think you have a case.

I've just realised this sounds really bossy. Sorry about that but I've just been there & the more information you can provide the better.

As for the emotional cost of going to a tribunal, I'm there at the mo & as long as you accept early on that the job has gone & you can only hope for compensation then you should be ok. Getting upset just stresses you out so let the solicitor do his job, while you concentrate on finding a new one.

The silver lining is that you are getting extra time at home with your dc. Good luck.

You also need to get copies of your staff handbook, any policies on flexible working, sex discrimination, maternity policies.

If you cannot afford representation then CAB maybe able to help you, but the person would not be legally qualified.

I found it helped to have a folder where I could keep copies of all letters, emails. You also need to have a seperate folder that you can use to prove that you have been actively looking for work.

One other thing, you need to see this as business, not personal.

If they make a business decision to get rid of you, you are then taking a business decision to extract compensation. It's that simple.

I'd worked for my co. for so long, it felt like I was suing my mother, I actually felt guilty until I got a grip.

This happened to me, so you have my full sympathies.

I got a very good person on board from ACAS and CAB. Fortuntatley where I used to work, there was a union, and if I joined there and then they could fight my case.

At no point was I told of the consultation period or at the "voluntary redundancy" stages. Within 3 days of starting work, I was told that I was being made redundant.

I stuck it out and the unions fought my case, and eventually settled out of court for £5000. Lost earnings for 6 months plus a little bit of a handshake too.

I did think about taking it all the way, but the unions said that I would end up with less, so I wanted to cost the company as much as possible

If you ask me, you have a fantastic case, and I would fight it if you can.

Good luck

Dillie- Good on you for fighting your position. But just a note of caution, we don't actually have enough information to say whether the OP has a fantastic case yet.

It is legitimate for a company to restructure.

It is fine to divvy up duties to free up time for new ones.

There isn't anything inherently wrong with international travel (although there are potential issues if the travel is not a proportionate way of achieving a legitimate business aim and disadvantages women).

Flowery has covered the flexible working request. Turning it down (not putting it on hold) is not that sensitive, but the central point of not being able to make a decision until after the restructuring is valid.

The comments during pregnancy are dodgy (assuming that they were derogatory as the OP has said), but that's all the information we really have now.

The OP may well have a good case. The restructuring may be a false way of getting her out. The travel may be unreasonable. The manager may be bang out of order. But, as someone who works in employment law, I'm always a bit nervous of us on MN making pronouncements about how strong someone's case is. I'd feel dreadful if we either got someone's hopes up - or equally if we knocked them down and dissauded them when they had a good case.

Aye true, true

Apols for the fantasic case bit, but it just riles me when companies dont follow the "best practice" route!!

But having said that, my company was caught on a technicality "best practice was not followed and the employee not informed at the right stages even though she was on maternity leave she had the right to be told"

I used to work in HR and saw this all the time at this particular company

I would get advice at all points and if you can and qualify for legal aid take it. Only then will the OP know what is what

What Ribena said.

I think the flexible working is really a non-issue. Being in the process of making structural changes is a perfectly valid and indeed very sensible reason not to consider a flexible working request. If the jobs weren't even finalised let alone allocated they had no chance of assessing whether the OPs job could be worked flexibly, in 3 days a week or whatever change she was requesting. They didn't even know what job she would be in. Flexible working changes are permanent so the change couldn't be considered in reference to the very short-lived existing job.

Absolutely the right thing to do to refuse it. It would be good practice to delay hearing it until restructuring complete and roles allocated, but there's no legal obligation to do so.

IN terms of procedure, assuming they followed all the correct timings, allowed the OP to be accompanied by a colleague and gave her the right of appeal it seems the only procedural problems were not explaining fully why the restructuring reason applied, and using the word 'proposed' instead of 'planned' in the response to the appeal. There's no material difference, changes to the structure were being planned. A tribunal would require the employer to explain more fully why the 'planned structural changes' reason applies and probably adjust the wording in the appeal response. Neither of those things are worth taking any further imo as it won't make any difference to the outcome.

I think whether the OP has a good discrimination claim will partly depend on the following:

Whether she has reason to believe she was made redundant because of her maternity leave.
Whether she has reason to believe the restructuring was delayed unnecessarily and deliberately to avoid her being on maternity leave at the time.
Whether the international travel required for the new role is actually necessary to bring in the new business the employer wants.
The nature of the derogatory remarks.

Phew - I am exhausted reading all this. Many thanks for all your comments, even those that aren't what I want to hear but it prepares me for what stance they will take.

I will let you know how it all goes in the end.

Trying not to think too hard about it today as little buba is one today and has celebrated by standing on her on, which is exactly what I need to do stand up and fight.

xx