Job no longer exists after maternity leave: ask the expert
I’ve tried to answer your question based on the information given there are some gaps, so I suggest you obtain formal advice based on the full facts.
Firstly, the law protects you against being unfairly selected for redundancy because of your pregnancy or taking maternity leave. If your job has genuinely become redundant while you are absent then you are entitled to be offered a suitable alternative vacancy (if there is one) on terms and conditions not substantially less favourable than those of your old job. These rights are set out in the Maternity and Parental Leave Regulations (as amended) 1999 and the Employment Rights Act 1996.
You don’t mention whether you received anything in writing and also if the alternative job offered by the employer is “suitable” i.e that the terms and conditions should not be substantially less favourable than your existing job. It is also not clear how much maternity leave you have taken, when you are due to return to work and the time frame for this redundancy process.
Generally, the rules regarding return to work following maternity leave are set out in Regulation 18 of the Maternity and Parental Leave Regulations 1999, as amended. You only have the right to return to the same job, working the same hours you were employed to do before you took maternity leave if you return to work within Ordinary Maternity Leave (within the first 26 weeks).
During Additional Maternity Leave (weeks 27-52 of your maternity leave), you can only return to the same job if that is still reasonably practicable. There is more flexibility available to the employer. If it is no longer the case, your employer must provide you with a suitable and appropriate alternative job role. “Suitable” and “appropriate” should be a job role as near as possible to what you were doing before you left for maternity leave.
In terms of a potential redundancy, you say that your colleagues seem to be doing their same job and only you seem to be “at risk” of redundancy.
In a genuine redundancy situation an employer needs to show fairness in operating a redundancy procedure. It needs to show a fair process by:
- Showing that it has warned its “at risk” employees. Ideally employees need to be warned of this as early as possible;
- Explained the redundancy process;
- Selected for redundancy using objective selection criteria;
- Consulted with the” at risk” employees to prevent their roles being redundant. There are special consultation requirements if more than 20 employees are to be made redundant in a period of ninety days or less; and
- Considered and offered available alternative employment:
Your employer should have informed you verbally and then in writing:
- The circumstances/reasons for the “redundancy”;
- Who is at risk of redundancy and why;
- Their selection criteria; and
- Details of the redundancy/consultation process and timeframe which may end with your job being redundant.
You should also be given first refusal of any suitable available job and you take precedence over other workers who are being made redundant (who are not on maternity leave).
It does seem from the facts that you are being treated unfairly by reason of your maternity status if your colleagues' jobs are secure yet they carry out the same or similar type of work as you. If this “redundancy” is by reason of your pregnancy/maternity leave you can make a claim for automatic unfair dismissal and pregnancy/maternity-related discrimination at the Employment Tribunal, subject to filing your claim within the applicable time limits.
If you are made redundant and you have worked for your employer for at least two years, you will be entitled to receive a statutory redundancy payment. If you are still being paid statutory maternity pay, you will receive that in addition to redundancy pay.
As a starting point, I suggest you ask your employer to provide full written details of the redundancy process/timeframe and an explanation as to why you are the only employee at risk of redundancy while others carry out the same or similar duties. Use the above bullet points as a guide.
As you seem to have potential claims please also obtain advice based on your specific facts.
If I can be of any further assistance, please contact me.
Ruth Renton is the founder and director of Renton Associates Ltd, providing commercial and practical Employment Advice and Training in the Workplace. She is also a working mum of four kids – her biggest challenge! To contact Ruth for advice or training please email her on firstname.lastname@example.org. Her website is www.rentonassociates.com and she can be found on linkedin.