Can I be made redundant on maternity leave?

I am on maternity leave for the third time and when I returned from maternity leave last time the organisation restructured to make an additional post at the same grade and my maternity cover was appointed to this position. At this time I submitted a counter proposal during the consultation period which proposed a senior manager (my role) with less senior managers reporting to me. This proposal was rejected with the response being that the work demanded senior management oversight. However, when I left to go on maternity leave this time the organisation restructured on a ” temporary” basis to cover my work to exactly the proposal I had suggested and they had previously rejected. Now that I am planning on returning they have said that the temporary structure will become permanent and that only one senior manager is required so we both face redundancy. I work part time – 30 hours per week – and the other person works full time. They have said this is a full time post, and cannot be managed on less hours. The work responsibilities remain the same and I have been the manager of these services for eight years whereas her management of these services commenced two years ago to cover my maternity leave although she is now on a permanent contract. Can I be made redundant?

In response to your question, it is possible to be made redundant whilst on maternity leave. However, generally speaking, when you return from maternity leave, you are entitled to return to the same job, on the same terms and conditions of employment as if you had not been absent.

If due to a redundancy situation it is not practicable for you to continue under your existing contract, then you are entitled to be offered any suitable alternative vacancy that may exist, in priority to other employees. If you are dismissed by reason of redundancy and this condition is not met then the dismissal would be automatically unfair. Suitable alternative employment would involve consideration of elements such as pay, location, status etc.

If any role offered to you was regarded as suitable alternative employment and you unreasonably refused it, you would lose your right to any redundancy payment due. If there is no suitable alternative vacancy available, then your employment will be regarded as terminated by reason of redundancy and your dismissal will be for that reason.

If, as you describe, you both face redundancy, you would need to explore whether the remaining role should be offered to you in priority to the other employee. Given that the role isn’t identical (in that it is full time rather than part time), this would involve an examination of whether this is indeed a suitable alternative role for you.

Please note that an employment tribunal would also want to consider whether this was a genuine redundancy situation, as opposed to a dismissal for another reason that is being masked by a supposed redundancy. Your employer would thus have to show that a fair and reasonable redundancy process was followed. If for any reason your selection for redundancy was due to your pregnancy/maternity leave, your dismissal would be automatically unfair and you may have a claim for pregnancy/maternity discrimination.

Due to the complexity of your situation and the need to carefully assess the reasonableness of the redundancy process as well as the issue of suitable alternative employment, I would recommend that you take specific legal advice on your next steps. You may also have a claim for part-time worker discrimination if the remaining role could, in fact, be done as a part-time role. Please note that claims for unfair dismissal and/or discrimination have to be submitted to an employment tribunal within a period of three months from the date of the act to which the complaint relates and you also have to have undertaken the Acas early conciliation procedure in order for your claim to be accepted by an employment tribunal. Before proceeding to submit any claim, I would also advise you to submit a grievance to your employer in relation to any adverse treatment suffered.

Should you require any further clarification on the above points please do not hesitate to contact Tracey Guest of Slater Heelis LLP on 0161 672 1425.

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