Job withdrawn after restructure on return from maternity leave

I finished my maternity leave recently. In a meeting just prior to returning I found out my role no longer existed due to a restructure and so I had to move to a different team to a job that matches 60% with my previous role. I was also sent links to other available roles in the company to apply for. However, when I went on maternity leave, there were two identical roles created in another restructure – one assigned to me and another to one of my colleagues. He is continuing in that role, but I won’t because of business reasons. At the time, another different role was created for me in my team, but this was no longer there when I went in for my meeting. Is this a redundancy situation?

Maternity Notice letter

Close-up Of A Woman's Hand Filling Maternity Leave Form Holding Pen Over Desk

Under the Maternity and Parental Leave etc. Regulations 1999, you are entitled to return to your old job following a period of additional maternity leave, unless it is not reasonably practicable for your employer to allow you to do so. Where it is not reasonably practicable for you to return to that job, your employer must provide you with an alternative role that is suitable in all of the circumstances and on no less favourable terms than you would have enjoyed had you not been on leave.

As I understand it, your old job, the job in which you were employed before your leave, was one of the two identical roles that were created following the restructure around one year ago.

As set out above, it follows that you should return to that job unless that is not reasonably practicable. It seems here that your employer is suggesting that it is not reasonably practicable for you to return to that role because that role no longer exists as a result of a second restructure.

In my view, the circumstances you have described give rise to a redundancy situation in law, in that it appears there is a reduced requirement for work of a particular kind i.e. the kind that you were previously employed to do.

Your employer could seek to rely on redundancy as being the reason for it not being reasonably practicable for you to return to and continue working in your old job. However, women returning from ordinary or additional maternity leave enjoy special, enhanced protections in redundancy situations. These protections mean that you should be offered, in priority over other employees, any suitable alternative vacancy, again on no less favourable terms than you previously enjoyed.

Your employer may say that they have complied with their obligations set out above by offering you the alternative role in the different team, which you say is 60% similar to your old job. It is open to you to challenge your employer about whether that role is, in fact, a suitable alternative if you do not think it is. When considering the question of the suitability of the alternative employment offered, the new role should be looked at as a whole and consideration should be given to various factors, including:

– The duties associated with the new role;

– The skills required to perform the new role;

– The pay and benefits attached to the new role; and,

– The working arrangements offered with the new role, for example working hours and location.

It is for your employer to show that the alternative employment offered to you is suitable and they should give due consideration to any points of concern that you raise in that regard.

Momentarily putting aside the special protections that employees returning from ordinary or additional maternity leave enjoy, employers also have more general obligations towards their employees in redundancy situations, including to undertake a fair selection process in determining which employees are ‘at risk’ of redundancy and then to adequately consult with those employees.

You say that two identical roles were created following the first restructure and that one of those roles remains following the second, more recent, restructure, and that your colleague is due to continue in that one remaining role. Given that it sounds like there was a great deal of similarity between your old role and the one remaining role, there is an argument here that your employer should have placed both you and your colleague who is continuing in the one remaining role in an ‘at risk’ pool, carried out a selection process in order to determine which one of you was ‘at risk’ of redundancy and potentially allowed you both to apply for the one remaining role. It does not appear that process has happened here.

Practically speaking, in terms of next steps, I would suggest you raise these issues with your employer, explaining the situation as you see it and where you feel they have failed to meet their obligations and follow due process. Hopefully your employer will take your concerns seriously, but if you feel that you are not being listened to or that appropriate steps have not been taken to address the issues raised, you could raise a formal grievance in writing in line with your employer’s grievance procedure.

If your employer does not comply with its obligations to offer a suitable alternative vacancy and your employment terminates as a result, that dismissal will be automatically unfair. It will also be automatically unfair and discriminatory if you are selected for redundancy for a reason connected with your pregnancy and / or maternity leave.

If the situation does not resolve itself and you intend to pursue a claim in the Employment Tribunal, you should be aware that there are strict time limits in which you must do so. Generally speaking, an employee must bring a claim within three months less a day from the date of the act they are complaining of. In most types of case, an employee is required to register with A (The Advisory, Conciliation and Arbitration Service) for early conciliation prior to bringing a claim in the Employment Tribunal. The purpose of this is to try and resolve a dispute without the need to bring proceedings in the Employment Tribunal. If you decided you did not wish to go ahead with early conciliation, or you went ahead but the process is ultimately unsuccessful, Acas will send you an early conciliation certificate, which will contain a unique early conciliation number. You should keep this in a safe place because you will need to enter that number onto any claim form if you decide to issue proceedings in the Employment Tribunal.

*Ella Sheppard is an associate and solicitor specialising in employment law at Nelsons.

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