It's been a year of complete turbulence and it ends with yet another warning about...read more
I have been on maternity leave since last year and was due to return earlier this summer. I gave due notice I wanted to extend my leave at the start of the year. At the same time I requested to go part-time and my manager said he would have to speak to his superiors and would get back to me within a few weeks. I didn’t hear back from them for several months. Someone from higher up the ranks/ HR then eventually got in touch with me and asked me to come in for a meeting to discuss my return to work and the “future of the business”. I was already considering the possibility by then that I might be made redundant, but didn’t mention it. At the meeting I was told that I am at risk of redundancy. They did make it sound like they were trying to find me an alternative role, but suggested I could apply for a full-time role. The reason my company have given for my redundancy is that they are drastically reducing spending on “international” and focusing almost entirely on the UK. I am German and my work focuses on Germany. I also know that German pay per click generates the most revenue. My maternity cover, however, has only been covering UK work. Another colleague in my team on maternity leave is being accommodated within a part-time UK role. They have also recently hired more UK account managers. Surely there is an alternative role for me? Also, are they obliged to offer me a part-time role? The redundancy package they are offering is around £1,400 in redundancy money plus one month’s notice. I have worked there for 3 1/2 years. Should I get a better package?
Firstly, you are entitled to 52 weeks’ maternity leave. The first 39 weeks attract qualifying statutory maternity pay. The first 26 weeks of maternity leave are classed as ordinary maternity leave and the remaining 26 weeks are classed as additional maternity leave.
After your statutory maternity pay has been exhausted the remainder of any maternity leave is usually unpaid unless you have a contractual entitlement to additional enhanced maternity pay. During your maternity leave you are entitled to all your usual benefits, for example, pension and private medical insurance cover and your annual leave continues to accrue. Your continuity of employment also continues. The only thing you are not entitled to is your usual remuneration. You are also entitled to agree with your employer up to 10 keeping in touch (KIT) days. It is usual practice for your employer to agree in advance the days that you can return as part of those KIT days, for example to undertake any new training.
If you wish to take additional unpaid maternity leave then you have the legal right to do so and can return any time before the expiry of the 52 weeks as long as you keep your employer informed and up to date.
In relation to your flexible working request, you have the statutory right to make a request and you have sufficient qualifying service. The law makes it clear that requests should be made in writing, clearly setting out the specific changes that you are seeking to your current contractual hours of work and the reasons for the request and the date that you would like the changes to take effect. You will also be required to consider how you think that your request will affect the business for example as a cost saving.
Assuming that you have correctly made the application your employer should arrange a meeting to discuss your request as soon as possible which will give you an opportunity to elaborate on the changes that you are seeking to your working hours and to explain the reasons for the request. In terms of a time-frame the law requires the process to be completed within three months of your request being received by your employer.
There is a duty on your employer to consider your request in a reasonable manner. However, they can reasonably refuse the request if there are good business reasons for doing so, for example, there is an inability to organise work amongst existing staff or for example a detrimental effect on the quality of work in your department.
Your employer ought to be consistent where it can when dealing with requests for flexible working arrangements. However, there can be differences in the approach if there is less impact on one department compared to another. I note that your colleague in HR works part-time, although it is unclear whether she has always worked part-time or whether she has been granted flexible working arrangements. Your employer can treat flexible working requests differently based on the needs of the business, as long as they have reasonably considered them, and that any decision is not discriminatory. Do remember that you can only make one flexible working request in any 12-month period.
Looking at the threat of redundancy, I would point out that the reason for any redundancy has to be genuine and should fall within the statutory definition of redundancy. This can include a closure or partial closure of the work–place, a diminution in the amount of work available, the need for different skills and abilities, a relocation or the restructuring of the department or team.
The basic principle, however, is that at the end of your maternity leave you have the right to return to your original job. If this is not possible then a similar job on the same terms and conditions should be offered if at all possible.
It is not clear whether there is a genuine need for your role to be made redundant, as although the justification seems to be a ‘cut cost on international territories’’, the German pay per click appears to be the most successful. This appears to be contradictory, as does the fact that your employer is still recruiting, albeit for different roles to yours.
Your maternity replacement has also been undertaking only UK-based work, and if he has not been undertaking your work during your maternity absence then I would suggest that you ask your employer what has happened to your work and specifically who has been undertaking it whilst you have been on maternity leave. This might clarify whether there is a genuine need for your role to be made redundant.
In the event that there is a genuine redundancy situation based, for example, on a cut in international and German work, then your employer needs to present a business case to you at the start of the process justifying the need to reduce numbers on the team. They should also back this up with any relevant statistics too. If there is more than one person in your team undertaking this role then your employer would need to undertake a redundancy scoring exercise from a relevant pool of employees based on their knowledge of skills and experience. The lowest scoring employee in this type of exercise is then potentially at risk of redundancy.
As part of the process your employer would also need to follow a fair and reasonable procedure before it is in a position to formally dismiss you on the grounds of redundancy, which at that point would trigger any employment rights that you have.
Your employer would need to enter into a reasonable period of consultation, for example, 3 or 4 weeks, to try and find suitable alternative employment across the business. The fact that you are on maternity leave works in your favour because your employer is still under a duty to fully consult and inform you in relation to developments even though you are absent from the work-place. The good news is that if you are made redundant during your maternity leave, then the law stipulates that you must be offered any suitable alternative vacancy that exists, and so your employer would have to offer it to you before anybody else who is not on maternity leave. If they fail to do so then your dismissal is likely to be unfair and potentially sex discrimination.
Suitable alternative employment means a role that is at the same or similar salary that your current role demands and at a similar seniority. If you refuse an offer of suitable alternative employment then in theory your employer could refuse to pay any statutory redundancy pay that you may be entitled to. If, on the other hand, there are no suitable alternative roles, but only different roles at a lower rate of pay then you can reasonably refuse them without any prejudice to your statutory redundancy pay.
During the consultation period you could enquire what other roles are available and your employer could issue a regular vacancy list, say, every week listing all existing and new roles. It is likely that some roles will not be appropriate and will attract a lower salary. Some of the roles may be part time which would fit in with your need for flexible working arrangements. The larger the organisation and the more resources it has, then more emphasis should be placed on attempting to source an alternative role.
Your employer should also consider whether to provide training for you for any other role that attracts different skills. Any agreement or offer of alternative employment, also triggers a statutory 4-week trial period during which you can try out the role. If it doesn’t work out for either you or your employer then either party can end the role during the 4-week trial period without any prejudice to your statutory redundancy entitlements.
In the event that your employer exhausts a fair and reasonable process and there are no suitable roles that can be sourced by the end of the consultation period then they can in theory dismiss you at that point on the grounds of redundancy. You will be entitled to a statutory redundancy payment as you have more than 2 years continuous service, calculated according to a formula based on your age, length of service and weekly salary (capped at £479). In addition you are entitled to statutory notice of three weeks unless your terms and conditions of employment suggest a greater period of notice and also any accrued but unused holiday pay up to the date of dismissal. I would also advise you to check whether there is any enhanced redundancy policy which pays, for example, redundancy payments at a higher rate than the statutory rate. Any dismissal must be confirmed in writing setting out the reasons in full and there is also a right of appeal against the decision that you have the right to pursue.
I note that your employer appears to be suggesting a minimal payment which, if it was paid, means that you could still pursue any rights that you may have for unfair dismissal and potential race and/or sex discrimination, based perhaps on your nationality and gender. You will need further advice in the event of determining whether or not to resort to litigation which can be time-consuming and costly.
It might be worth having what we call a ‘protected discussion’ with your employer to see if they will offer a better financial package for example a couple of additional months ex gratia payment tax-free. They might in return ask you to enter into a settlement agreement where you agree to waive your legal rights, for example, unfair dismissal and unlawful discrimination in the employment tribunal and you would need to seek independent legal advice as to the terms and effect that this type of agreement would have on your ability to issue legal proceedings.
I trust that this addresses the many points that you have raised and I hope it all works out for you.