Restructure on maternity leave: ask the expert

As an employee currently on maternity leave, there are special rules which apply to you in a redundancy situation such as this. This is because employees on maternity leave enjoy protection under the Maternity and Parental Leave (MPL) Regulations. The Regulations state that, where there is a suitable alternative role, an employee on maternity leave is entitled to be offered this role in preference to other employees provided it is suitable. A suitable role is one which:

– is suitable in relation to you and it is appropriate for you to do in the circumstances; and

– the terms and conditions of the new role are not substantially less favourable than if you had continued to be employed under your current contract

You have mentioned that only one role is suitable given the location. Obviously you have considered that this role is suitable for you, but your employer must also agree. If the role is suitable based upon the points above and your employer refuses to offer it to you, then your dismissal would be automatically unfair and you would be entitled to bring a claim in the Employment Tribunal against your employer for unfair dismissal and also sex discrimination.

It may be the case that your employer considers another role to be suitable (even though it might mean a change of location). If, for example, an extra half hour would be added to your journey time, this may still be a suitable alternative. If you then refuse the role unreasonably, you would lose your entitlement to a redundancy payment. You must also consider whether anybody else on maternity leave may be putting themselves forward for the role that you are considering. If this is the case, obviously your employer would then have to make a decision about who is best suited to the role and must continue to consider suitable alternatives for the unsuccessful applicant.

I would advise you to put your name forward for the role that you consider to be suitable, and make it clear that you are applying for it on a part-time basis.

There are two ways to ask for flexible hours when returning from maternity leave. The first way is to make a general request. Your employer is under a duty to consider the request and can only refuse the request if there are good reasons for not being able to accommodate the hours you asked for e.g. it is not possible to properly do your job on fewer days. If their refusal of your request is unreasonable then you could claim sex discrimination and resign and claim unfair dismissal.

The other way to request your change in hours is through the flexible working rights under the Employment Rights Act 1996. Employers must follow a set procedure and will only be able to refuse a request where there is a recognised business ground for doing so.  Given that you are applying for the job, it would be best to wait until you have been offered the job before applying for part-time hours under this route. Just express a general desire to work part time at this stage.

In the event that there are no suitable alternative vacancies, the redundancy process would continue and you could be made redundant. You would then be entitled to a redundancy payment and possibly your notice pay depending on whether you are entitled to statutory notice or a longer period of notice.

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• Part time jobs Maternity leave Restructure