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I am on maternity leave until February 2012 and my company is restructuring, creating a mirror image of current existing roles (i.e. no major change to responsibilities and no change to pay). The primary reason for the restructure is implementation of a new IT system. However, there is a rumour of an upcoming new contract which would involve 16 new people being TUPE’d in (no contracts signed yet). I have been asked to reapply for a new role within the restructure – although at this point I am only being asked to indicate which role I want. Do I have to go through an re-application process whilst on Maternity Leave? And do I have grounds to reject the competitive applications process and insist on an offer for a suitable alternative or alternatively a reason why it is not reasonably practicable to do so?
If there is a legitimate restructure then you would have to go through the same re-application process as all other members of staff. If you were excluded from the process or not kept properly informed or were consulted less than your colleagues/not invited to meetings attended by other staff, then that would be another matter. If this happened you could allege that it was because of your maternity leave that you were being excluded. This does not, however, appear to be the case. It would, however, be worth scrutinising whether it is necessary to restructure all roles if very little is changing. Just because a new IT system is being introduced does not mean that this would necessarily have an impact on roles. If, in fact, the real reason for the restructure is to lose some people before a TUPE transfer in order to avoid a more complicated selection process, then this would be a good reason for you to raise your dissatisfaction concerning the process.
Provided that the competitive applications process is being carried out for sound business reasons even if slightly illogical (since the tribunal does not go behind a business decision made by a company on the whole) then you are unlikely to have grounds to reject the competitive applications process and insist on suitable alternative employment. However, if you were unsuccessful in being given your similar role, they would need to consider you for suitable alternative employment. As a person on maternity leave, you are supposed to be considered for suitable alternative employment (if available) ahead of your other colleagues. It would therefore be in the company’s interest to offer you a similar role rather than rejecting you whilst on maternity leave. This may give you grounds to claim either unfair dismissal and/or maternity discrimination.
I would suggest that the first step should be for you to apply through the competitive applications process and see what happens. If you are rejected and there is no attempt to consider you for suitable alternative employment, then you should appeal and exhaust the internal process first before considering whether it is worthwhile to make a claim. In considering whether to make a claim, however, this would have to be considered carefully since for unfair dismissal you would have to show that there was no fair reason for dismissal (redundancy/restructure if genuine is a fair reason) and there would need to be an unfair process (I am not clear about the full process followed, but allowing competitive applications and keeping you informed are indications that the process may be fair). Furthermore, for a claim for maternity discrimination, it would need to be shown that you had been/are being treated less favourably. I do not have any evidence of this for the time being, but it would of course be advisable to keep a close eye on this during the process.
In terms of potential compensation, the latter claim has the potential to carry more weight as if an award is made the amount awarded could be unlimited. I trust that this helps.