It is lawful to make a mum on maternity leave redundant so long as the axe is not wielded on the grounds of maternity leave or pregnancy; so if you find yourself in the firing line what should you watch out for?
Many mums are under the assumption that whilst on maternity leave their job is safe and they can’t be touched and whilst it is automatically unfair and not to mention automatic sex discrimination for your employer to select you for redundancy or dismiss you for a reason connected with maternity leave or birth and pregnancy it is lawful if they can fairly justify their choice.
Clearly there is a grey area and what is a ‘fair choice’ is often up for debate. Official figures suggest that around 440,000 women per year face discrimination at work while pregnant or on maternity leave indicating that many businesses still fail to get the process right. It is however, lawful to make pregnant women redundant as long as fairness is applied. Directgov say that for example, your employer might close the section of their business that you normally work in and make all employees in that section redundant. If this is the case then your employer can make you redundant as well.
However, if your employer makes staff cuts across the company, say Directgov, they cannot make you redundant because you are on or are about to take maternity leave.
If you are made redundant whilst on maternity leave then you have special rights. You have the right to be offered any suitable alternative job in the company. This is even if there are other employees that might be more suitable for the job. If you are offered a new job, you are still entitled to the four-week trial period, which should start when you return from maternity leave.
If you get wind of redundancies then the first thing to remember is that you are also entitled to a consultation period and this applies even and especially when you are on maternity leave.
This consultation period should be paid. If it’s a collective redundancy, where mass lay offs are occurring then you will be entitled to consultation of at least 30 days if there are between 20 -99 redundancies or 90 days consultation where 100 or more are losing their jobs. Failure to consult may entitle you to a protective award of up to 90 days’ pay should an Employment Tribunal find in your favour.
Redundancy pay and SMP:
If you are made redundant or dismissed during your maternity leave, following your consultation period, then your employer must give you a written statement explaining the reasons for their decision. Whilst you might go onto accept this, it is understandable that your first thoughts may turn to how you will cope with the financial strain, especially if you were planning on returning to work at the end of your maternity leave period so you must check out your payment rights.
You should note therefore that you are entitled to receive your normal notice period or pay in lieu of notice and redundancy pay, if you are entitled to receive them. And if you are eligible for Statutory Maternity Pay (SMP), you will get it even if you decide to leave your job (or are made redundant) before you start receiving SMP. Directgov, says that once you start getting it, your employer must continue to pay SMP to you even if you leave your job or are made redundant. You don’t have to repay it if you decide not to go back to work or leave your job while getting SMP.
In a question posted to www.workingmums.co.uk
a mum was given notice whilst on maternity leave and told that she would stop getting her SMP payment on the date that she was made redundant, and get instead her redundancy payment, Laura Livingstone, a partner at Davenport Lyons said that in this case the employer is wrong to say that you can only get SMP up to the date you are made redundant. Instead she advises that you are entitled to a lump sum of SMP paid for the remainder of the maternity leave period – the sum that you would have received had you been there for the whole period plus your redundancy pay. See Workingmums.co.uk
Claiming redundancy from an insolvent company:
Sadly many businesses have to close altogether leaving you at least assured that you haven’t been picked on simply because you were taking care of the baby. But how can you ensure you get your payout if your company goes into liquidation? This exact question was posted to Workingmums.co.uk
recently. In this case a part-timer wondered whether she could claim back redundancy pay and payments due for untaken holiday. Alexa Etheridge, a senior assistant for law firm Davenport Lyons said that you can claim for any unpaid holiday entitlement in the liquidation of a company and in order to do so you need to complete a proof of debt form setting out the amount of unpaid holiday you are claiming. However, Alexa says that the amount you receive will depend on whether there is any money available in the liquidation.
If your employer can’t pay your redundancy pay because they’re insolvent then you can also apply for a direct payment from the National Insurance Fund. To do this you must first write to your employer asking for your redundancy pay. If they are still unable to pay you then you should fill out a RP1 form available from the Insolvency Service.
Good luck and for further advice go to: Directgov.uk