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I have recently gone back to work, part time, after having a baby. I have only been back two months and they are making me redundant and moving my job to India, although I am a floater and help out different departments when needed and cover holidays/sickness. No one else is being made redundant. They have based the decision on a scoring system based on appraisals last year. However, I was on maternity leave last year so I did not have an appraisal. Therefore my score is based on an average score. I am also 16 weeks pregnant. Do I have any rights as I feel like I am being punished for having a baby, going part time and being pregnant again? I have been told this process may drag out until October and this is very stressful.
Selection for redundancy due to pregnancy / maternity leave will amount to unfair dismissal and discrimination. This does not mean that all pregnant employees who are made redundant will automatically succeed in a claim for unfair dismissal or discrimination.
As you have explained in your email, your employer is looking to move your job role to India. It is therefore likely that your employer will argue that the redundancy is in fact based on a reduced requirement for employees to carry out work of a particular kind or to do so at the place where you are employed to work.
For the employer to legitimately show that a redundancy is fair it must be able to demonstrate that i) there is a genuine redundancy situation (you can put forward arguments that this is not the case) and ii) it had warned and consulted you about the proposed redundancy, adopted a fair basis on which to select for redundancy (ie fair selection criteria and markings – which again you can argue is not the case) and considered suitable alternative employment (if available) for those made redundant.
Before selecting an individual for redundancy, the employer should consider what the appropriate pool of employees put up for redundancy selection ought to be.
The usual starting point is for the employer to consider which particular kind of work is ceasing or diminishing, the extent to which employees are doing similar work and the extent to which employees’ jobs are interchangeable. Ultimately the employer must show that the pool they have selected and considered was reasonable and proportionate. From your emails it is evident that you have been working as a floater for the business. This should alert your employer to the fact that your skills may be interchangeable with other employees of the business and so a wider pool may well be called for.
In assessing your work-related performance, your employer can refer to written records, such as performance appraisals to determine the relevant pool. However, if a fair selection criterion is unfairly applied, the dismissal can still be classed as unfair if the selection for redundancy was discriminatory.
In light of the above you may be able to argue that your employer has treated you less favorably as you were on maternity leave when the last round of appraisals took place and so you did not have one. You subsequently scored the lowest due to an ‘average score’ being awarded as no appraisal was undertaken. In light of this you may wish to challenge your score as part of the consultation process.
Your employer is not obliged to create new alternative positions for redundant employees if none already exist, but reasonable efforts should be made by them to undertake a sufficiently thorough search for alternative employment. As you work as a floater between departments you may have a number of transferable skills that could make you suitable for alternative employment within the business, yet this will ultimately be dependent on the availability of the same.
It appears that no final decision will be made until October 2014. My advice is that you lodge a grievance in writing now regarding the procedure to date. In this letter you should explain your concerns that i) there is no genuine redundancy situation and why you believe this is the case; and ii) set out why you do not believe a fair process has been followed in respect of the pool of employees at risk of redundancy, the selection criteria used and the markings given to yourself. Explain that you really feel that the only reason you have been told you will be made redundant is because you have just returned from maternity leave and are pregnant again.
As part of this process, your employer may offer you a termination package. I can advise you whether any amount offered is reasonable.
If your employer continues with your redundancy, you may have claims for unfair dismissal and discrimination.
Please contact Tracey Guest on 0161 975 3823 if you would like further advice in relation to this matter.