Pushed out after going on maternity leave?

I am currently on maternity leave and the managing director I work for has left the business to work elsewhere. HR contacted me three weeks ago to tell me that I am at a 95% chance of being made redundant since there is no other PA role in the company. She did say to have a look online to see if there is anything else I would like, but that that would mean a pay cut – to which I said I couldn’t afford to take a pay cut due to nursery fees etc. She said she would contact me to let me know of my package etc, but I have heard nothing. I have chased this, but so far nothing. When I went on maternity leave to have my first child two years ago, they hired a permanent PA to cover me whilst on maternity leave – when I asked them why they are recruiting another PA they said because we need 2 PAs in the head office (which is untrue as I had been doing that role for two years without a problem). I returned to work last September and no one could really allocate me to a job. I asked my then manager and he sort of shrugged his shoulders and said I don’t know why they took another PA on. Another MD who was also in the meeting said that his PA had left and would I mind working for him, which I did. I went on maternity leave in the summer and subsequently the MD has now left to another job. Which leaves me in unfamiliar territory and I feel like this is all happening again. This is causing me stress and is really not what I would have anticipated again. I know from working in the Head Office that the HR director wanted to ‘remove’ me from the London office for reasons unknown to me. I feel today that I have been pushed out of a job and today I am being made redundant because of how they treated me the first time I went on maternity leave.

I note from your question that you are currently on maternity leave and that your HR department contacted you three weeks ago to tell you that as there is no other PA role in the company for you as the MD you were working for has left and that you are at a ‘95% chance of being made redundant’. I further note that after three weeks of hearing nothing you contacted HR who then stated that they would let you know of your ‘package etc’.

Assuming that your employer does dismiss you on the grounds of redundancy, such a dismissal will only be fair if this is a genuine redundancy situation (and this is the genuine reason for your dismissal) and furthermore, your employer must have followed a fair procedure in effecting your dismissal on the grounds of redundancy.

Your employer must firstly demonstrate therefore that this is a genuine redundancy situation. In short, in relation to your situation, this is where your employer has a diminished need for employees to carry out work of a particular kind. Given that the MD you have been working for has left the business, it is likely that your employer will be able to argue that this is a genuine redundancy situation as there is a diminished need for work of a particular kind (PA work) as a result of the departure of the MD.

However, as stated above, to fairly dismiss you for redundancy reasons, your employer must also follow a fair procedure. This will involve warning you and consulting with you in relation to the impending redundancy. It will also involve following a fair selection process, which involves the fair application of objective selection criteria to a pool of employees. Your employer should begin by identifying the pool, which is the group of employees from which it will select those who are to be made redundant. There are no fixed rules about how the pool should be defined and the choice of pool is primarily a matter for the employer to determine, but issues that your employer should consider when identifying the pool include the type of work that is ceasing or diminishing, the extent to which employees are doing similar work and the extent to which employees’ jobs are interchangeable.

I note that prior to going on maternity leave for the first time you state you were performing your role as a PA in the head office for two years without any problems. Your employer should take into account previously done work when considering the pool as your skills may be interchangeable with other employees and so a wider pool may be called for. I also note that another PA was previously taken on and you have a strong argument that the pool for selection should include both PAs and not just you. You can argue that this PA is doing similar work to you and that your jobs are interchangeable.

After the correct pool for selection has been identified, your employer must then identify and apply fair selection criteria to the pool in order to determine which individual will be selected. Your employer is also under a duty to look for suitable alternative employment for you in order to avoid your dismissal on the grounds of redundancy. Please also note that special provisions apply to you whilst on maternity leave in relation to suitable alternative employment, In this respect, you are entitled to be offered any suitable alternative vacancy that exists in preference to other employees. The suitable alternative vacancy must, however, be such that the work is both suitable and appropriate in the circumstances and the other terms and conditions of your employment are not substantially less favourable than if you had continued to be employed under the previous contract of employment. I note that you were asked to look online to see if there was anything else you would have liked to have done, but any job offered would mean a pay cut. This may therefore mean that no suitable alternative vacancy exists. However, please bear in mind that if a suitable alternative vacancy does exist and it is not offered to you, you are likely to have a claim against your employer for pregnancy/maternity discrimination as well as automatic unfair dismissal.

If your employer does not have a genuine redundancy reason for dismissal (for example, if its reason for dismissing you is instead based on subjective reasons) and/or it fails to follow a fair procedure, you will have a claim for unfair dismissal. Furthermore, if your redundancy is based on pregnancy/maternity grounds, you will have a claim for pregnancy/maternity discrimination and your dismissal is likely to be automatically unfair. Any such claims would need to be brought in an employment tribunal within three months of your dismissal and you would need to follow the Acas pre-conciliation procedures before a tribunal would accept your claims.

Given that you are not yet at the stage of being dismissed, you could submit a written grievance at this stage detailing your concerns with the process your employer has followed to date. This would be with the aim of forcing your employer to ‘correct’ the process. It is likely then to take note and at least attempt to follow a fair redundancy process. This may avoid your dismissal, but if you are dismissed, it is likely to weaken your prospects of a successful claim as your employer may well have corrected any issues with the unfair process. Alternatively, you could wait to see how the process evolves and see if you are dismissed. You could then submit an appeal against your dismissal, again, setting out the flaws in the process your employer has followed. You could then consider contacting Acas with a view to potentially submitting a tribunal claim against your employer.

If you would like some further advice at this stage regarding any of the points discussed above then please contact Tracey Guest on 0161 975 3823.

*Helen Frankland assisted in answering this question.

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