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I have been a buyer and retail ops manager for year and half now and have been with the same employer for 11 years. I have been on maternity leave and arranged to meet my employer to discuss my return to work to be told my job is at risk. I was offered a lower paid/ status job to avoid consultation. I have since discovered that only three weeks prior to this meeting an appointment was made of similar terms and conditions to my current job. I was not notified of this vacancy, although I have the experience needed. I have replied saying I couldn’t take a lower paid, lesser status job than I am currently on and I am disappointed that I wasn’t made aware of a vacancy that suited me more. I know when I return to work I could face consultation, but would I still be eligible for redundancy?
It appears that your employer has explained to you that your role is at risk of redundancy after 11 years working for the same employer. Where a redundancy situation arises in respect of your original role you were working in prior to going on maternity leave (Buyer & Retail Ops Manager), you are entitled to be offered a suitable alternative role (where available) to avoid being made redundant.
I understand that you have been offered an alternative role. However, that role is of a lower status and on a reduced salary than your role and you have expressed to your employer that you could not accept this role.
I understand that you are also concerned that when you return to work after your maternity leave, you could face formal redundancy consultation and would like to know whether you would be eligible for redundancy.
Firstly, you mentioned that you are disappointed that somebody was appointed to a role on similar terms to yours, three weeks prior to you being informed that your role is at risk of redundancy. Whilst your employer may argue that this role was not vacant at the time your role became at risk of redundancy, as you have stated that you have the skills to carry out this role, your employer should have informed you of the vacancy, redundancy issue aside.
I presume that you didn’t have any Keeping In Touch (KIT) days, as it is likely that, had you been in work for a KIT day, you would have found out about the new role and/or the risk to your role as you would usually find out about office changes either formally or on the ‘grapevine’ whilst in the office on a KIT day.
Note that you are not obliged to work any KIT days. However, if you have not expressed to your employer that you do not wish to attend work at all during your maternity leave, you should bring to your employer’s attention that they could have invited you to attend a KIT day to discuss vacancies and/or the potential redundancy prior to you arranging to meet your employer.
Whilst on maternity leave, your employer should keep you informed of any promotion opportunities or vacancies which arise. Where your employer does not do this, you may be able to pursue a claim for discrimination and/or unfavourable treatment against your employer in the Employment Tribunal. Your argument to your employer would be that you believe the reason for you not being notified of this vacancy is for a reason connected to your pregnancy/maternity and as a result of your employer’s failure, you have now suffered a detriment.
From a redundancy procedure perspective, your employer has a duty to offer a suitable alternative vacancy when they become aware that your role is redundant or potentially redundant. Therefore, if you have not been adequately consulted due to being on maternity leave, this should be raised to your employer as this could give rise to a claim in the Employment Tribunal for pregnancy- and maternity-related discrimination.
Turning to the role which has been offered to you as an alternative, where you are on maternity leave and are offered an alternative role in an attempt to avoid being made redundant, the offer must be such that the work to be carried out in the new role on offer is both suitable and appropriate for you to do in your circumstances and the capacity of that role offered and place in which the role is to take place, along with the other terms and conditions of that role, must not be substantially less favourable in comparison to your role.
You have explained that the role offered to you is of a lower status and lower pay and you have therefore rejected this offer. If your employer confirms to you that there are no other roles for you to consider as an alternative redundancy and that your role will terminate by reason of redundancy, whether you are entitled to a redundancy payment would depend on whether the alternative role offer you have refused was a suitable alternative role for you and whether you were reasonable in deciding to reject it.
If the role was deemed to be a suitable alternative and you were deemed to have been unreasonable in rejecting the role, you would lose the right to any redundancy payment.
The burden is on your employer to show that the role offered to you was suitable and that your refusal was unreasonable.
Case law on this area has highlighted that a drop in status is likely to render an alternative offer unsuitable. You have expressed that the role you have been offered was also of a lower salary. Therefore it is unlikely that your employer would be able to show that the role was a suitable alternative.
On the basis that the alternative offered to you was not a suitable one, if your role is terminated by reason of redundancy, you should be entitled to a redundancy payment. Remember too that your redundancy payment should be calculated in the same way as it would have been had you not gone on maternity leave.