I understand that you are asking about the circumstances in which you can be dismissed....read more
I am currently 37 weeks pregnant with my second child. I work full time and have been with the company 12 years. I’m due to start my maternity leave next week. On a catch-up call with my manager a couple of days ago, I was informed that we are having budget problems and my role would likely by reduced to 50% of the hours on my return – and is this is something I would be interested in? I said that I would love to do 50%, but due to financial circumstances at home it would be impossible. They won’t say exactly what they are offering, or what the alternatives are, but it is obvious that one is redundancy (which would possibly be preferable to me than being made to do 50% of my hours). I am upset that they have broached this a week before I go off on maternity leave. My manager has scheduled in a catch up in 8 weeks time when I’m on maternity leave to update me, which I agreed to. There is another lady who does the same role with the same job title in the office, although she looks after a different business stream. She has not been asked if she would like to do part time. I queried this and they attributed it to her business stream and area being more profitable. My question is what to do from here – is there something I should be considering, or asking for? Should I take legal advice now or wait till further down the line?
I understand you are going on maternity leave. You work full time and have been with your company for 12 years. Your manager informed you recently that the company is having budget problems and that your hours are likely to be reduced by 50% on your return to work following maternity leave. There is another lady who does the same role with the same title in your office, although she looks at a different business stream – she has not been asked if she would like to do part time.
If the company is having budget problems then they should instigate a full and fair redundancy process. If the role you are contracted to do no longer exists then the company should follow a full and fair redundancy procedure, during which you and any colleagues who had the same job title should be put into a pool of employees at risk of redundancy. You should not be put at a disadvantage having been on maternity leave.
If a redundancy situation arises during your maternity leave and “it is not practicable by reason of redundancy” for your employer to continue to employ you under your existing contract, you are entitled to be offered a suitable alternative vacancy (where one is available) to start immediately after your existing contract ends. This gives you priority over other employees who are also at risk of redundancy and is a rare example of lawful positive discrimination. This is one way in which employees on maternity leave must be treated more favourably than other employees in a redundancy exercise – you must be given first refusal on any suitable alternative vacancies. If your employer does not comply with this requirement, it is likely to be maternity-related discrimination and you may have a claim for automatically unfair dismissal.
The Employment Appeals Tribunal has confirmed that you should not be required to undergo a competitive interview for the post.
The offer must be of a new contract taking effect immediately on the ending of your previous contract and be such that:
• The work is suitable and appropriate for you to do.
• The capacity, place of employment and other terms and conditions are not substantially less favourable than under the previous contract.
If a vacancy failed to satisfy both limbs it would not be a suitable alternative, for example if the job was in a location much further away, or on a lot less money.
If you were offered a suitable alternative and refused it, a dismissal for redundancy is likely to be fair. If you unreasonably refused the offer, you would also lose your right to a redundancy payment.
You have three months minus one day to bring a claim in the employment tribunal so you should bear this in mind and seek legal advice as soon as possible if you are dismissed for redundancy during your leave. You are protected by legislation against maternity discrimination during your “protected period” which ends when you return to work. Therefore, if the company left it more than three months after your return from maternity leave to instigate a redundancy procedure you may not be protected by the relevant legislation unless the unfavourable treatment takes the form of implementation of a decision that was taken during your protected period. In these circumstances the treatment will be regarded as having taken place during your protected period even if the treatment does not in fact take place until after the protected period has ended, although this can be extremely difficult to evidence.